On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. P-0683-2000.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Parrillo and Graves.
Daniel Vnencak (Daniel), Administrator C.T.A. of the Estate of Mary Margaret Vnencak (Estate) appeals from an order dated February 14, 2007, which enforced a Settlement Agreement and Mutual General Release (Settlement Agreement) and required the Estate to pay counsel fees and costs to Daniel's brother, Andrew Vnencak (Andrew), in the amount of $20,000. In his cross-appeal, Andrew contends the court "misused its discretion" when it awarded him counsel fees and costs in the amount of $20,000, instead of "the full $24,336.34 to which he is entitled." After considering these contentions in light of the record and the applicable law, we affirm.
For the sake of clarity some background information is in order. We begin by recounting the relationship of the members of the family whose affairs are involved in this appeal. Mary Margaret Vnencak (Mary), now deceased, was the mother of Thomas Vnencak (Thomas). Thomas has two sons, Daniel and Andrew, both adults. Joseph Runyans (Runyans), also an adult, is the grandson of Mary, nephew of Thomas, and cousin of Daniel and Andrew. Finally, Daniel Vnencak has a son, Jonathan Vnencak (Jonathan), who is a minor and beneficiary under Mary's will of half the cash assets of her Estate.*fn1
Prior to her death, Mary's son Thomas was her power of attorney, and in that capacity, Thomas initiated prosecution of a claim on Mary's behalf against her grandson, Runyans, for the theft of approximately $400,000, which Mary had held in certificates of deposit. Mary died on March 11, 2000, and pursuant to her Last Will and Testament, dated November 6, 1998, Andrew was appointed Executor of her Estate. As Executor, Andrew, through attorneys H. Neil Broder (Broder) and Gary N. Marks, continued to pursue the Estate's claims against Joseph Runyans. On November 28, 2000, Andrew and Runyans entered into a settlement agreement (Runyans Settlement) whereby Runyans received $200,000 and the Estate received $190,000, with any remaining balance left in the certificates of deposit being "divided equally between Runyans and the Estate."
On March 15, 2001, Broder issued two checks, each for $97,132.06, from his attorney trust account, to Thomas and Andrew, representing the funds recovered from the Runyans Settlement. Following the advice of Broder, neither Andrew nor Thomas turned these funds over to the Estate. Instead, they kept the money for personal use.*fn2 On October 1, 2001, Daniel commenced an action on behalf of his son Jonathan, against Andrew, alleging the funds Andrew received from the Runyans Settlement were cash assets of the Estate.
While Daniel's lawsuit against Andrew was pending, Broder filed a lawsuit against the Estate and Andrew for attorney's fees in the amount of approximately $5,000 (Broder Fee Suit). On June 4, 2004, Andrew and the Estate, represented by Charles R. Cohen (Cohen), answered Broder's complaint and counterclaimed for negligence and breach of contract in relation to the Runyans Settlement. Also, on June 11, 2004, Andrew, individually and as Executor of the Estate, commenced an action against his father, Thomas (Thomas Vnencak Suit), to recover the $97,132.06 Thomas received from the Runyans Settlement.
On June 14, 2004, Andrew resolved the lawsuit Daniel had filed against him by entering into the Settlement Agreement that is the subject of this appeal. Pursuant to paragraph four of the Settlement Agreement, Andrew resigned as Executor of the Estate and agreed, subject to approval by the court, that Daniel would serve as Administrator C.T.A. of the Estate. In addition, the Settlement Agreement provided that Andrew was to pay to the Estate the total sum of $260,000, allocated as follows:
A. $97,132.06 representing the return of funds distributed to Thomas Vnencak by H. Neil Broder, Esq. from the [Runyans Settlement] . . .;
B. $97,132.06 representing the return of funds distributed to [Andrew] by H. Neil Broder, Esq. from the settlement of the Runyans Suit; and
C. $65,735.88 representing fees and costs incurred by [Daniel in pursuing the Estate's claim against Andrew]. [(Emphasis added).]
In paragraph five of the Settlement Agreement, Daniel, "as anticipated Administrator C.T.A. of the Estate of ...