Opinion
DOCKET NO. A-1093-14T4
10-03-2016
IN THE MATTER OF THE ESTATE OF HERMELES O. JONES, Plaintiff-Respondent, and CASSANDRA EVERETH, Plaintiff, v. PERRY T. JONES, JR., Defendant-Appellant.
Perry T. Jones, Jr., appellant pro se. Byrnes, O'Hern & Heugle, LLC, attorneys for respondent (Loryn M. Lawson, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-213-06. Perry T. Jones, Jr., appellant pro se. Byrnes, O'Hern & Heugle, LLC, attorneys for respondent (Loryn M. Lawson, on the brief). PER CURIAM
This probate matter regards the administration of the estate of Hermeles O. Jones (decedent), who died on December 16, 2004. Defendant Perry T. Jones, Jr., decedent's nephew and a beneficiary of her estate, appeals from two related orders filed on September 12, 2014. In one order, the probate judge approved the proposed final accounting and distribution of assets submitted by the court-appointed substitute administrator Loryn Lawson, after rejecting the objections by Jones and his sibling, who refused to execute refunding bonds and releases. The other order denied Jones's cross-motion challenging various distributions and reimbursements, which Jones asserted required correction prior to closing the estate and his claims of breach of fiduciary duty in conducting the estate administration. The judge denied Jones's requests for relief, concluding all issues had been raised and adjudicated during the decade-long litigation.
On appeal, Jones couches his arguments as due process violations. He contends the judge misapplied her discretion in the wholesale denial of his claims, suggesting Lawson should have been subject to examination during an evidentiary hearing. He also argues the approval of the proposed final accounting was erroneous. We reject these arguments and affirm.
Lawson's administration of decedent's estate commenced on November 9, 2006. Jones originally was the administrator of decedent's estate. However, extended controversy challenged Jones's actions and charged him with dissipation of decedent's assets. Thereafter, Jones filed numerous motions and petitions attacking Lawson's actions; creditors and claimants sought payment from the estate; and plaintiff Cassandra Evereth, another beneficiary, charged Jones with misappropriation of decedent's assets. We will not identify every claim raised by Lawson, Jones and others, but will discuss examples of the most significant controversies raised triggering the litigation.
On that date, Judge Alexander D. Lehrer executed two orders appointing Lawson: first, as the Administratrix C.T.A. of the Estate of Doshia Jones, decedent's sister who died on August 18, 2005; second, as Substitute Administrator of decedent's estate. Many of the proceedings mention the administration of each estate. Jones held a power of attorney for Doshia Jones.
When decedent was declared "mentally incapacitated" in September 2000, "Jones became the guardian of her property," stated to total $574,301.82.
There were eight complaints or petitions filed by Jones and others in the Probate Division. Several challenged Jones's handling of decedent's funds prior to and after her death, including, for example, allegations seeking payment because Jones: allowed his daughter and her family to reside in decedent's Freehold home without a corresponding obligation to pay rent; expended decedent's funds for the benefit of third-parties; paid unsubstantiated debts to his related entities; and inappropriately issued advance disbursements.
Jones attacked Lawson's administration of the estate, focusing primarily on a delay in the sale of the Freehold home. Jones's daughter submitted a purchase offer, which was accepted; however, she proposed Jones's anticipated share of the estate satisfied the required down payment, which was rejected by Lawson. Third-party financing could not be obtained and the concomitant delay impacted the ultimate sale price. Additional resultant consequences from the delay included the inability to finalize the inheritance tax return, which in turn increased the estate's debts.
The Division of Taxation filed a $369,423.80 Certification of Debt encumbering estate assets, which was ultimately vacated when the return was filed and taxes and applicable assessments paid.
In addition, a complaint was filed in the General Equity Division by decedent's sister, Doshia, seeking to set aside the transfer of her assets to an irrevocable living trust, which Jones purportedly initiated for his and his family's benefit. Although the record suggests this action was dismissed, following Doshia's death, Evereth filed a complaint for return of Doshia's assets that were placed in the trust. All actions were considered together in this proceeding.
Trial was conducted by Judge Thomas W. Cavanagh, Jr. over numerous dates including: January 23 and 24, June 10 and 12, July 29 and 30, October 22 and 29, 2008; January 27, March 11, and November 4, 2009; and January 28, 2010. Summations were presented on June 3, 2010. However, the judge determined additional evidence was necessary to resolve specific issues and additional proceedings were held on June 23 and 24, 2010.
The record does not include trial transcripts from 2008.
Judge Cavanagh placed factual findings on the record over six days and issued an order dated January 9, 2012. After reciting each party's claims, identifying undisputed facts, and discussing the documentary evidence, the judge finalized several disputes, including whether Doshia's transfer of her assets to the trust was the result of undue influence, plaintiff's challenge to Jones's management of decedent's funds and Jones's challenge to Lawson's administrative decisions.
Judge Cavanagh also ordered Lawson to meet with Jones to accumulate "any and all information necessary to provide the [c]ourt with a comprehensive and full accounting and final analysis regarding all the issues raised in the pleadings regarding the estate matters." Essentially, Lawson was to consult with the parties and, after evaluating the claims for payment and reimbursement, present her proposed accounting. The parties were permitted to file objections to Lawson's submitted recommendations and Lawson responded to some objections. The remaining disputes were to be resolved during a final hearing, which was held on January 18, 2013.
On June 25, 2013, Judge Cavanagh placed his findings and conclusions on the record. Following his analysis of the evidence, he accepted Lawson's recommendations for final payment and distribution "with limited exceptions." The judge found the estate's current assets totaled $291,938.61 and liabilities to creditors equaled $40,154.85. Among the provisions in the order, the judge granted certain reimbursement requests by the beneficiaries and finalized claims made against Jones. Lawson was ordered to satisfy all inheritance taxes and to hold one creditor's claimed funds, pending further documentation. The judge fixed counsel fees payable by the estate, which were incurred on behalf of Lawson, Evereth and Jones. He ordered any remaining funds distributed "in accordance with N.J.S.A. 3B:5-4."
In December, Jones moved to be relieved from provisions of the June 28, 2013 order. A different motion judge was assigned to review the matter upon Judge Cavanagh's retirement. The judge found all issues had been decided by Judges Lehrer and Cavanagh. Her January 24, 2014 order denied all nineteen requests submitted by Jones.
Thereafter, Lawson prepared and distributed a final accounting and a refunding bond to each beneficiary. Jones and his sibling declined to execute refunding bonds. Consequently, on July 22, 2014, Lawson petitioned for approval of the proposed final accounting, sought an order permitting the determined disbursements and allowing her to deposit remaining funds into court to close the estate.
Jones filed a cross-motion, again raising the nineteen issues previously denied by the January 24, 2014 order. The motion essentially resulted from Jones's disagreement with Judge Lehrer's determination to appoint Lawson as substitute administrator and Judge Cavanagh's decisions on all contested claims, following trial.
Jones also directed his motion to Lawson's former law firm, arguing it was responsible to perform certain functions. A representative of the firm appeared during the September 12, 2014 hearing. In his appeal, Jones identified the firm as a respondent. A letter to this court by the firm urges it is not a party to this action.
The motion judge permitted oral argument. The record reflects Jones's acknowledgement the motion reiterated the issues denied in the January 24, 2014 order. The judge found Jones's "arguments are the same arguments that Judge Cavanagh ruled on . . . so the only thing Miss Lawson is here for is to approve this final distribution," made in accordance with Judge Cavanagh's prior rulings. In response, Jones maintained "[t]his whole case is about an illegal act by . . . the late Judge Lehrer." Jones also asserted Lawson was appointed to "carr[y] out his [Judge Lehrer's] agenda." Finally, he argued the issues were not decided by Judge Cavanagh.
The motion judge found Jones's cross-motion presented issues that were addressed following trial precluding her independent review. Characterizing the cross-motion as a request for reconsideration of Judge Cavanagh's June 25, 2013 final decision and her earlier January 24, 2014 order, the judge concluded Jones's request was untimely and, therefore denied.
Next, the judge considered Jones and another heir opposed Lawson's proposed distribution of the estate's funds. She considered his objections to closing the estate, finding they stemmed from his disagreement with the order removing him as administrator and Lawson's appointment in his stead. The judge found no error with Lawson's accounting, which incorporated the conclusions in prior orders.
The September 12, 2014 orders approved the final accounting, as submitted and ordered Lawson issue distribution of the amounts stated in her accounting. Also, the orders denied the cross- motion in its entirety. The judge advised Jones of his right and the time to file an appeal, which ensued.
"The scope of appellate review of a trial court's fact-finding function is limited" because "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We decline to disturb "factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). On the other hand, challenges to legal conclusions are subject to our de novo review. Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).
The rules governing procedures in our courts include very definitive time limits to seek reconsideration of trial court orders and appellate review of those orders. Specifically, Rule 4:49-2, provides a litigant with the opportunity to convince a trial court it should reconsider its ruling based on "a statement of the matters or controlling decisions which . . . the court has overlooked or as to which it has erred." As we held in Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996), the rule encompasses only those circumstances that "fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Id. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). In short, Rule 4:49-2 provides a litigant with the opportunity to convince the trial court that a critical mistake was made based on what was before the trial court at the time of the ruling. The rule provides:
Except as otherwise provided by [Rule] 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court's corresponding written opinion, if any.
[Rule 4:49-2.]
Rule 1:3-4(c) prohibits "the parties" and "the court" from enlarging the twenty-day time restriction in Rule 4:49-2. The rule does not present an occasion for a litigant to obtain a review of evidence presented and issues decided, absent identification of the judge's failure to consider material, competent evidence or an assertion of legal error. Importantly, reconsideration is "not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).
In our review, we remain guided by the established principle stating reconsideration of an order is "a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice." Id. at 288 (quoting D'Atria, supra, 242 N.J. Super. at 401). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Here, Jones failed to abide the procedural time limit and substantive requirements of Rule 4:49-2. It is undisputed the cross-motion merely replicated the earlier motion, which was reviewed and rejected on January 24, 2014. Therefore, the motion judge correctly declined to consider Jones's untimely attempt to review matters previously decided.
If Jones believed the judge was incorrect in her denial of his requests for review on January 24, 2014, as well as any other interlocutory determination by the court in the course of the litigation, these challenges may be presented on appeal, as of right. See R. 2:2-3(a)(1) (providing final judgments from the Superior Court trial divisions are appealable to the Superior Court Appellate Division as of right). "A judgment is final for purposes of appeal if it 'dispos[es] of all issues as to all parties.'" Wein v. Morris, 194 N.J. 364, 377 (2008) (quoting Hudson v. Hudson, 36 N.J. 549, 552-53 (1962)). "This rule, commonly referred to as the final judgment rule, reflects the view that '[p]iecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998) (quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975)). "Although that principle is easily stated, it is not always easily applied." Wein, supra, 194 N.J. at 377.
We agree the goal of Jones's cross-motion was to undo the prior orders that rejected his various claims; however, we disagree with the motion judge's characterization that suggested appellate review was foreclosed. We conclude Judge Cavanagh's June 28, 2013 order was not a "final order," requiring an appeal be filed within forty-five days following its entry. While the order did finalize the various petitions and complaints of the competing parties, approval of Lawson's final accounting and distribution of the estate assets remained to be submitted before the estate could be closed. In that light, Jones' challenges to factual findings or legal conclusions set forth in any interlocutory order were not foreclosed from appellate review.
We now turn to the specific points raised on appeal, urging us to vacate the order closing the estate. Our review is limited to the challenges identified in the Notice of Appeal and Appellate Case Information Statement. R. 2:5-1(f)(3)(A) (mandating the notice of appeal in all civil actions shall "designate the judgment, decision, action or rule or part thereof appealed from . . . ."). The rule is designed to assure all responding parties have notice of the scope of the appeal. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[I]t is clear that it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review . . . ." (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66, (App. Div.), aff'd o.b., 138 N.J. 41 (1994))).
Here, Jones's notice limits his challenge to the September 12, 2014 orders. For the reasons stated above, we affirm the order denying Jones's cross-motion. The pleadings sought review of issues rejected in the January 24, 2014 order, which failed to meet the time requirements of Rule 4:49-2.
The second order approved Lawson's accounting and distribution, which Jones suggests was incomplete in part because her prior law firm was obligated to reimburse the estate, pay restitution and punitive damages. He argues he was denied the opportunity to cross-examine Lawson at a hearing on these matters as well as the other proposed distributions.
Initially, we reject as lacking merit arguments grounded on Jones's unsupported opinion suggesting "felonious activity by litigating attorneys, fiduciaries and the Superior Court of New Jersey," plaintiff's counsel, Lawson and her prior law firm. R. 2:11-3(e)(1)(E). Nor will we entertain unsubstantiated diatribe suggesting the proceedings equated to a "kangaroo-court," judicial cover-up, or a conspiracy to ignore Lawson's breaches of her fiduciary duty. Ibid. Our review is confined to the legal arguments presented.
Jones asserts due process mandates his right to challenge Lawson's final accounting in an evidentiary hearing.
A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. D.N. v. K.M., 429 N.J. Super. 592, 602 (App. Div. 2013), certif. denied, 216 N.J. 587 (2014). In the context of litigation, fundamental due process demands a party be given adequate notice and a reasonable opportunity to be heard. Ewing Oil, Inc. v. John T. Burnett, Inc., 441 N.J. Super. 251, 260 (App. Div. 2015). See also Doe, supra, 142 N.J. at 106 ("Fundamentally, due process requires an opportunity to be
heard at a meaningful time and in a meaningful manner."). Additionally, due process protections encompass "procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses." Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005). See A.B. v. Y.Z., 184 N.J. 599, 604, 807 (2005) ("[D]ue process guarantees civil litigants a measure of confrontation."); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003).See also U.S. Const. amend. XIV, § 1 (recognizing due process guarantees); Crespo v. Crespo, 408 N.J. Super. 25, 34 (App. Div. 2009) (holding Article I, Paragraph 1 of the New Jersey Constitution encompasses due process protections).
[In re Adoption of Child ex rel. M.E.B., 444 N.J. Super. 83, 88-89 (App. Div. 2016).]
Here, Lawson's proposed distributions, including payment of creditors' claims, reimbursement of expenses asserted by Jones, his daughter and others, and requests for the estate to bear the burden of the attorney's fees and costs of the respective challengers, were fully aired over sixteen hearing-days and numerous motions before Judge Cavanagh. During the extensive trial, testimony was presented from parties and witnesses, and a myriad of evidential documents were introduced and considered by the judge. Jones participated in all of these proceedings.
Although Jones generally suggests he was denied an opportunity to be heard, he points to no time when he was foreclosed from airing his position or when his competent evidence was not considered. To the contrary, the extensive record, which incidentally does not include all trial and motions proceedings conducted, reflects Jones received all pleadings, was given the opportunity to respond and offer his position, ably offered testimonial and documentary proofs, and capably summarized his position at the close of evidence. Lawson's proposed distributions merely reflected Judge's Cavanagh's extensive decisions on these issues. Jones's arguments equating the judge's adverse determination with a denial of due process is untenable.
Next, Jones asserts Lawson's accounting could not be approved because it was not "full accurate and complete" and also suggests the motion judge erred in not conducting a line-by-line review of the accounting. Jones's argument mischaracterizes the nature of the motion hearing under review and, therefore, is rejected.
As support for this claim, Jones cites Rule 4:87-1(a); however, that rule governs the venue of actions to settle accounts, the procedure to initiate said process, and the need to identify commissions and attorney's fees sought. --------
We understand the motion judge's comments as explaining Lawson's motion did not seek approval of the estate accounting in the first instance because full consideration, of the claims for disbursement, reimbursement, attorney's fees and other payments, followed the extensive trial. Lawson's presentation merely recorded the prior comprehensive rulings made through a series of orders. Judge Cavanagh decided whether claims should be rejected or paid, and the amount due; he fixed counsel fee awards payable by the estate; and determined Lawson's compensation. Jones does not argue, nor can we conclude Lawson's proposed accounting exceeded the bounds of these orders. In fact, she filed the motion for approval as a precaution because of the beneficiaries' balking. The September 14, 2014 order did nothing more than formalize the previously ordered results. No line-by-line review was necessary.
In his final issue, Jones asserts the motion judge omitted required findings and conclusions in the January 24, 2014 order. See R. 1:7-4 ("The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ."). This issue is not properly before us for review because Jones did not include this order in his notice of appeal. Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001). For completeness, we add these brief comments.
The motion resulting in the January 24, 2014 order was filed more than six months following the order after trial. Jones consented to disposition on the papers, without benefit of argument. As noted, a challenge to that order was required to be presented within twenty days of that date. R. 4:49-2. Nothing explained the delay in challenging the trial order. The motion judge used the form of order submitted, struck the printed statements and wrote the word "denied" on each provision. The order then included: "All relief is DENIED. The above matters have been decided by Judge Lehrer and Judge Cavanagh. Any other relief sought is improperly before the court." Admittedly, the judge did not match prior orders to each request; however, her statement succinctly addresses her findings and conclusions.
Neither at that time nor now has Jones offered a legal basis to vacate Judge Cavanagh's final order. Rule 4:50-1 allows a court to relieve a party from an order upon proof of:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the . . . order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud . . ., misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, . . .; or (f) any other reason justifying relief from the operation of the . . . order.
[Ibid.]
Jones's disagreement with the conclusions reached at trial are insufficient and do not comply with the rule. Further, many of his factual recitations now made are devoted to early court proceedings and determinations by Judge Lehrer, for which transcripts were not provided. The absence of these essential records preclude our review. R. 2:5-3(a) (requiring verbatim transcripts of proceedings challenged on appeal); Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (holding the failure to provide the complete transcript permits appeal to be dismissed). For the same reason, challenges to Judge Cavanagh's order are rejected, as the record omits transcripts from eight days of trial conducted in 2008.
Accordingly, we reject Jones's challenges suggesting Lawson breached her fiduciary duty, misapplied estate assets, as well as all claims of misconduct by members of the judiciary. We have no basis to conclude Judge Cavanagh's findings were unsupported by the evidence of record. We determine there is no basis to interfere with the September 24, 2014 orders.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION