Opinion
DOCKET NO. A-0729-12T3
07-21-2014
IN THE MATTER OF THE PROBATE OF THE WILL AND ALLEGED CODICIL OF CONCHETTA M. GRIMES nee FORNARO, DECEASED.
Maria Fornaro, appellant, argued the cause pro se. Vincent R. Kramer, Jr., argued the cause for respondents Felix Fornaro (now deceased) and Carmine Carl Fornaro.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Morris County, Docket No. P-1104-07.
Maria Fornaro, appellant, argued the cause pro se.
Vincent R. Kramer, Jr., argued the cause for respondents Felix Fornaro (now deceased) and Carmine Carl Fornaro. PER CURIAM
Plaintiff Maria Fornaro appeals from a March 27, 2013 amended judgment admitting to probate the will and codicil of Conchetta M. Grimes, deeming valid and enforceable a revocable trust and amendment to the revocable trust executed by Grimes, qualifying defendants as executors of Grimes' estate, and ordering that Grimes' estate pay counsel fees and costs to defendants' attorney. We affirm.
Plaintiff Carmine Fornaro, Jr. ("Carmine, Jr.") and defendant Felix Fornaro ("Felix") are Grimes' brothers.Appellant is Carmine, Jr.'s daughter, and defendant Carmine Carl Fornaro is Felix's son. On September 16, 2003, Grimes executed a will that designated a revocable trust as the beneficiary of her residuary estate. She named plaintiffs as the executors of the will and trustees of the trust, and she named Carmine, Jr. and his wife as beneficiaries of the trust.
Felix died in December 2012.
We refer to appellant and Carmine, Jr. collectively as "plaintiffs."
On November 22, 2006, Grimes executed a codicil naming defendants as her executors. She also executed an amendment to the trust that named Felix and Grimes' sister Rose DiMonda as co-beneficiaries with Carmine, Jr.; removed Carmine, Jr.'s wife; and named defendants as trustees of the trust. Grimes died on January 26, 2007.
Defendants filed the will and codicil for probate in Morris County. Plaintiffs opposed probating the codicil, arguing that the codicil and the amendment to the trust were the result of undue influence on Grimes. During the discovery period, the court entered several orders directing defendants to produce phone records. Plaintiffs wanted records of phone calls between Grimes and defendants to show that defendants exerted undue influence over Grimes. As a sanction for failing to produce these records, the judge precluded defendants from introducing evidence to rebut arguments about the "nature, extent, [and] existence" of phone calls by, to, or from Grimes.
The case was then re-assigned to a different judge. On April 16, 2012, the new judge conducted a trial and issued an oral opinion in favor of defendants. Plaintiffs moved for reconsideration, and the judge re-convened the trial. On June 26, 2012, the judge entered a judgment in favor of defendants. On October 21, 2012, defense counsel filed an application for legal fees. The judge awarded defense counsel $37,500 in fees.
On appeal, appellant argues the following points:
A. Defendants Repeated Refusal To Provide Court Ordered Discovery Warranted Dismissal Of Their Answer And The Issuance Of A Default Judgment.
B. The Trial Court's Reliance On New Jersey Law Violates New Jersey's Choice of Law Doctrine Where the Will Specifies That Florida Law Applies.
C. The Trial Court's Failure To Render Either A Written Decision Or Order On The Parties' Summary Judgment Cross-Motions Prejudiced Appellant's Preparation For Trial Of This Action.
D. The Trial Court's Refusal To Honor A Discovery Order Of A Previously Appointed Judge Irrevocably Tainted The Judgment.
E. The Trial Court's Award Of Legal Fees Is Insupportable.
1. Counsel's Application For Fees Was Untimely.
2. Counsel's Application for Fees Was Insufficient, As A Matter Of Law.
3. The Trial Court's Award Failed To Address Counsel's Responsibility For Additional Costs Attributable to Defendants' Repeated Discovery Failures.
Appellant has not provided the transcript of the summary judgment hearing. Therefore, we decline to address this issue. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).
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I.
Appellant argues that the judge erred by not dismissing defendants' answer after defendants failed to comply with discovery orders. "'A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances.'" Abtrax Pharms. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citation omitted). Courts normally invoke the "ultimate sanction" of dismissal "'only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault.'" Id. at 514 (citation omitted).
We conclude that the judge did not abuse her discretion by remaining unwilling to impose the "ultimate sanction." Felix later certified that he was unable to obtain records of all of his phone calls. And, dismissal was not necessary to erase any prejudice that appellant allegedly suffered as a result of defendants' failure to produce these records.
II.
We decline to consider appellant's argument that the trial court should have applied Florida law, as this argument was "'not properly presented to the trial court when an opportunity for such a presentation [was] available.'" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Plaintiffs first raised this issue on their motion for reconsideration, and the judge properly denied the motion as untimely because they did not raise the issue during pre-trial proceedings or during the trial. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (indicating that reconsideration is only appropriate for a "narrow corridor" of cases).
III.
Appellant contends that the trial judge "tainted the judgment" by permitting defendants to rebut arguments about the phone records, contrary to the law of the case based on the prior judge's order. "A hallmark of the law of the case doctrine is its discretionary nature, calling upon the deciding judge to balance the value of judicial deference for the rulings of a coordinate judge against those factors that bear on the pursuit of justice and, particularly, the search for truth." Lombardi v. Masso, 207 N.J. 517, 538-39 (2011) (quoting Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998)) (internal quotation marks omitted).
Here, the judge considered the prior order and defendants' contention that the records were not available and decided that
I would want a record with respect to everything that anybody wants to put in relating to [the phone calls] and — and then I'll decide whether I agree with the order or disagree with the order, but I don't want to decide in the abstract that I'm going to be bound by it.After hearing testimony from DiMonda, the judge indicated that even if he inferred that phone calls were made, he would not make an adverse inference as to the content of the calls. The judge then stated:
So I'm confronted with a case in which there is simply . . . no evidence at all of suspicious circumstances. Merely changing the provisions of a will is not by itself a suspicious circumstance.
We conclude that the judge did not abuse his discretion in his interpretation of the prior order. And, the decision did not prejudice appellant because the judge found, even assuming that calls were made, no evidence of suspicious circumstances necessary for a finding of undue influence.
IV.
Appellant argues that the judge should not have awarded attorney fees because, among other things, the application for fees was untimely. We disagree.
Rule 4:49-2 requires that a "motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than [twenty] days after service of the judgment or order upon all parties by the party obtaining it." We have interpreted Rule 4:49-2 to apply to counsel fee applications under Rule 4:42-9(d). Ricci v. Corporate Express of the E., Inc., 344 N.J. Super. 39, 47-48 (App. Div. 2001), certif. denied, 171 N.J. 42 (2002). However, "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice," and "[i]n the absence of rule, the court may proceed in any manner" consistent with "secur[ing] a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." R. 1:1-2.
Here, the judge indicated that he would not hear motions for counsel fees until one or two months after the June 2012 trial. Although defense counsel submitted his fee application later than the parties and the judge had discussed, we conclude that the judge did not err in awarding counsel fees.
After a thorough review of the record and consideration of the controlling legal principles, we conclude that appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION