Opinion
DOCKET NO. A-2641-10T1
07-19-2012
BARBARA L. NEWMAN, Plaintiff-Appellant, v. ESTATE OF ROSE NEWMAN, Defendant, and JACK NEWMAN, JEANETTE HEIMOWITZ and RACHAYL HAHN, Intervenors-Respondents.
Barbara L. Newman, appellant, argued the cause pro se. Jeffrey A. Bronster argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4951-10.
Barbara L. Newman, appellant, argued the cause pro se.
Jeffrey A. Bronster argued the cause for respondents. PER CURIAM
Plaintiff Barbara L. Newman (Barbara) is an attorney and the daughter-in-law of decedent, Rose Newman (Rose). She appeals from an order that dismissed her complaint for legal fees against the "Estate of Rose Newman." We affirm.
Because of the common surname, we use first names to avoid confusion and mean no disrespect.
This case is one of several among the children of Rose Newman regarding her estate, both in Israel and in New Jersey. Rose lived in Israel, where she died on September 29, 2009. She had four children: plaintiff's husband, Alexander, Jeanette Heimowitz, Jack Newman and Rachayl Hahn. Rose's husband, Eugene, predeceased her.
After Rose's death, the Israeli civil court opened an estate in her name and appointed an Israeli attorney as executor, who was also "appointed for the properties of the deceased in the State of New Jersey in the United States or any other place in the world."
Barbara filed a complaint in Hudson County in September 2010, alleging that she was owed unpaid legal fees for services she provided to Rose and her husband from 1986-2006 on matters related to commercial properties in New Jersey. No retainer agreement, invoices or other demands for payment are included in the record. In the complaint, she alleges that the "reasonable value of the services" provided totals $921,333.
Plaintiff filed three other lawsuits involving the estate in Passaic County. They are not relevant to this appeal.
In November 2010, Jack, Jeanette and Rachayl filed a motion to intervene in the action, challenging Barbara's claim for legal fees. In December 2010, they filed another motion to dismiss the complaint on jurisdictional grounds. Barbara filed a cross-motion to transfer the action to the Chancery Division, to have an "ancillary administrator" appointed and for a preliminary injunction.
Barbara represents that she had submitted a claim for unpaid legal fees to the court appointed administrator in Israel and contends that the Israeli court refused to consider her claim. However, only partial, and uncertified, translations of the Israeli court's orders, purportedly dated May 28, 2010 and December 10, 2010, have been provided. These documents state:
A pervasive problem in this record is the lack of competent evidence to support factual assertions made in arguments. Rather than include and cite to independently created documents, plaintiff cites her own certifications and selectively chosen passages from arguments. See Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474-75 (App. Div. 2008) (a party must point to specific parts of the record to support its argument), certif. denied, 197 N.J. 406 (2009); see also R. 2:6-9.
In all matters concerning cancellation of transfers that were done in the lifetime of the deceased, with claims of coercion, deception and oppression, a separate complaint should be filed as these claims
will not be considered within the parameters of the estate case.
. . . .
6. In light of the fact that we are dealing with legal proceedings conducted in the United States court's jurisdiction, the administrator does not have the necessary knowledge to manage these proceeding[s] and in order to safeguard the rights of the estate, the administrator needs to hire the services of a lawyer to handle these proceedings.
Therefore, the translation relied upon does not support the argument that the Israeli administrator of the estate has rendered an adverse decision to Barbara or refused to consider her claim.
Another translation of unknown origin included in plaintiff's appendix states that on December 16, 2010, the Israeli judge excused the executor "from any responsibility for the estate in everything regarding the 4 lawsuits which are pending in the US." The translation of the December 2010 order also stated, "Each party is entitled to bring suits against the other party regarding items, jewelry and other assets of the estate, which each party claims were taken illegally by the other party." Although Barbara represented to the court here that the Israeli judge "determined that his court in Israel does not have jurisdiction to hear the claims for attorney's fees[,]" that decision is not included in the record. Barbara explains that the determination does not appear on the attached protocol because the Israeli courts do not have a verbatim transcript of the proceedings.
The trial judge dismissed Barbara's lawsuit for fees "without prejudice to the right of the plaintiff to pursue her claims in the courts of the State of Israel."
Barbara presents the following issues for our consideration in this appeal:
POINT I
THE TRIAL COURT ERRED IN DISMISSING THE ACTION BASED UPON THE RULES OF INTERNATIONAL COMITY.
A. THE TRIAL COURT MISAPPLIED THE DOCTRINE OF COMITY.POINT II
B. THE NEW JERSEY COURT IS THE FIRST FILED ACTION.
THE TRIAL COURT BELOW ABUSED ITS DISCRETION IN FAILING TO GIVE WEIGHT TO THE "SPECIAL EQUITIES" WHICH WERE SUFFICIENT TO WARRANT CONTINUATION OF THE PROCEEDINGS IN NEW JERSEY.
A. THE NEW JERSEY COURT SHOULD HAVE RETAINED JURISDICTION WHERE THERE WAS NO SHOWING OF A FIRST FILED ACTION INVOLVING THE SAME PARTIES, SAME CLAIMS AND SAME LEGAL ISSUES.
B. EVEN IF THE NEW JERSEY LITIGATION WAS CONSIDERED A SECOND
FILED ACTION, SPECIAL EQUITIES FAVORED THE NEW JERSEY COURT RETAINING JURISDICTION.POINT III
C. THE NEW JERSEY COURT SHOULD HAVE RETAINED JURISDICTION WHERE THERE ARE OTHER PENDING CASES IN NEW JERSEY.
THE TRIAL COURT BELOW ERRED IN CONCLUDING THAT IT LACKED SUBJECT MATTER JURISDICTION WHERE THERE WERE NO RELIGIOUS ISSUES TO BE DETERMINED AND WHERE THERE WAS NO CONSENT TO A RABBINICAL PROCEEDING.
POINT IV
DISMISSAL OF THE COMPLAINT WITH PREJUDICE WAS IMPROPER.
POINT V
THE TRIAL COURT ERRED IN NOT ADDRESSING THE CROSS MOTION FOR APPOINTMENT OF ANCILLARY ADMINISTRATOR.
POINT VI
THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING PLAINTIFF'S COMPLAINT WITHOUT A PLENARY HEARING BASED ON THE FALSE, CONTRADICTORY AND INFLAMMATORY OPINION OF INTERVENORS' ATTORNEY UNSUPPORTED BY CERTIFICATIONS AND NOT RELEVANT TO THE ISSUES.
After considering these arguments in light of the applicable legal principles, we are satisfied that none of them have any merit.
The trial court's decision to apply the doctrine of comity required "a fact-specific inquiry that weighs considerations of fairness and comity[,]" which we review under an abuse of discretion standard. Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 390 (2008). We discern no abuse of discretion here.
When a substantially similar lawsuit is pending in two jurisdictions, the "first-filed rule" reflects a presumption that "the court that first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it without interference or interruption from the co-ordinate court." Riggs v. Johnson Cnty., 7 3 U.S. (6 Wall.) 166, 196, 18 L. Ed. 768, 776 (1868). It "is the recognition that one nation gives to the 'legislative, executive or judicial acts of another nation.'" Exxon Research & Eng'g Co. v. Indus. Risk Insurers, 341 N.J. Super. 489, 503 (App. Div. 2001) (quoting Hilton v. Guyot, 159 U.S. 113, 164, 16 S. Ct. 139, 143, 40 L. Ed. 2d 95, 108 (1895)).
New Jersey adheres to the first-filed rule, and ordinarily will stay or dismiss a civil action in deference to the jurisdiction, whether in the United States or overseas, in which the substantially similar litigation was first filed. Exxon, supra, 341 N.J. Super. at 506; see also Sensient Colors, supra, 193 N.J. at 386 (citing O'Loughlin v. O'Loughlin, 6 N.J. 170, 179 (1951)); CTC Demolition Co. v. GMH AETC Mgmt./Dev. LLC, 424 N.J. Super. 1, 6 (App. Div. 2012). Even where a New Jersey court has jurisdiction to hear a case, it should "not interfere with a similar, earlier-filed case in another jurisdiction that is 'capable of affording adequate relief and doing complete justice.'" Sensient, supra, 193 N.J. at 387 (quoting O'Loughlin, supra, 6 N.J. at 179); see also Exxon, supra, 341 N.J. Super. at 506; Century Indem. Co. v. Mine Safety Appliances Co., 398 N.J. Super. 422, 426 (App. Div. 2008). The litigation of duplicative lawsuits is wasteful of judicial resources and, also, undermines recognition of the authority of the other jurisdiction to adjudicate the matter. See Sensient, supra, 193 N.J. at 387; Exxon, supra, 341 N.J. Super. at 505.
A "clear entitlement to comity-stay relief" is established by proof of the following: "(1) that there is a first-filed action in another state, (2) that both cases involve substantially the same parties, the same claims, and the same legal issues, and (3) that plaintiff will have the opportunity for adequate relief in the prior jurisdiction." Am. Home Prods Corp. v. Adriatic Ins. Co., 2 86 N.J. Super. 24, 37 (App. Div. 1995); see also Exxon, supra, 341 N.J. Super. at 506. Under such circumstances, "the judge should grant the stay unless plaintiff demonstrates 'special equities.'" Am. Home, supra, 286 N.J. Super. at 37; Exxon, supra, 341 N.J. Super. at 506.
Special equities arise when there are "compelling" reasons "that favor the retention of jurisdiction by the court in the later-filed action." Sensient, supra, 193 N.J. at 387.
[A] stay or dismissal of the second-filed action should be denied if an "injustice would be perpetrated" on a party in the first-filed action and "no hardship, prejudice or inconvenience" would be inflicted on the other by proceeding in the second-filed case.
[Id. at 389 (internal citations omitted).]
It is undisputed that the Israeli civil court opened an estate for Rose Newman shortly after her death in 2009 and appointed an Israeli attorney to administer the estate, including properties in New Jersey. Since the administration of the estate would entail the settlement of all claims against the estate, the opening of the estate in Israel constituted the "first-filed" action regarding these parties and these claims. See Sensient, supra, 193 N.J. at 386. Even if New Jersey courts could properly exercise jurisdiction regarding claims against the estate, the principle of comity would cause our court to decline to interfere, provided the Israeli court is "'capable of affording adequate relief and doing complete justice.'" Id. at 387 (quoting O'Loughlin, supra, 6 N.J. at 179).
A special equity exists when the jurisdiction in which the action was filed first is unable "to provide adequate relief[.]" Id. at 392. It is this special equity that Barbara argues applies here and should lead the court to disregard the traditional deference paid to the first-filed action. We disagree.
Barbara contends she cannot receive adequate relief in Israel because the probate court would not hear her claim. However, the record provided does not support that argument. For the Israeli court to be capable of affording adequate relief, it is not necessary that Barbara's claim be accepted or paid in full. What is necessary is that the court has the ability to hear and adjudicate her claim. See id. at 387. Barbara has failed to demonstrate that this is not the case and indeed, she demonstrated her own belief that the Israeli court could provide full relief by submitting her claim there and by giving pre-action notice of the right to fee arbitration to the Israeli administrator. See R. 1:20A-6. As the dismissal here was without prejudice to her ability to pursue her claim in the Israeli courts, she may seek full relief there.
After carefully considering the record and briefs, we are satisfied that Barbara'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 APPELLATE DIVISION