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In re Irrevocable Funded Life Insurance Trust


May 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, Docket No. 02-01078.

Per curiam.


Submitted April 28, 2008

Before Judges Parrillo and Gilroy.

Appellant Lynn Weinberg appeals from the June 8, 2007 order of the Chancery Division, Probate Part, which reduced the allowable counsel fees and costs of the trustee's attorney, Thomas N. Torzewski, to $105,704.09. We affirm.

This is the second appeal in this matter. In the Matter of the Irrevocable Funded Life Ins. Trust Established by Joseph Weinberg, U/A dated May 11, 1982, No. A-4036-03 (App. Div. July 20, 2006), certif. denied, 189 N.J. 649 (2007). Because the procedural history and statement of facts pertaining to the termination of the Trust and the disagreement of the parties are contained in our prior decision, we need not repeat them in detail. However, to place this appeal in context, we state the following.

Joseph Weinberg, who died in 2001, had created the Irrevocable Funded Life Insurance Trust (Trust) in 1982 for the benefit of his two daughters, appellant and Deborah Bort. Sharon Bort, Deborah's daughter, was a named contingent beneficiary sharing under the Trust agreement. The Trust had several successive trustees, with Norman Warner becoming its trustee in 1999. In September 2002, appellant filed a complaint in the Chancery Division, Probate Part, seeking to allocate trust funds for her support and for the settlement of the estate; to surcharge Warner for the Trust's losses; to discharge him as trustee; and to appoint a corporate trustee. Deborah sought to reform the Trust, and Warner sought approval of his accountings.

The trial court, among other matters: 1) allowed Warner's accountings; 2) rejected appellant's objections; 3) directed Warner to terminate the Trust and distribute 50% of its assets to Lynn, 25% to Deborah, and 25% to Sharon; 4) allowed Warner commissions of $21,341; and 5) awarded counsel fees to Warner of $118,271.49.

On appeal by appellant, we affirmed the termination of the Trust and the distribution of assets; determined that Warner had violated his fiduciary duty and was negligent in his failure to manage the Trust, but that appellant had failed to submit sufficient evidence that Warner's negligence was the proximate cause of the Trust's losses; and disallowed Warner's commissions. In addition, we directed that the matter be remanded to the trial court for the limited purpose of reconsidering Warner's counsel fee application "in light of our determination that his performance as Trustee was deficient and that he took an unreasonable position early in this litigation [by refusing to vacate his position as Trustee without a full release from all beneficiaries]." Id. at 33.

On remand, the trial court entered an order on June 8, 2007, supported by a written memorandum of decision, reducing the trustee's award of counsel fees and costs by 10%, and applied a surcharge of $822.50 for services rendered on commissions. On appeal, appellant argues that the trial court abused its discretion "in reducing the attorney[']s fee award to Warner's counsel by only ten percent," contending that the trial court failed to properly apply and analyze the nine factors of In re Bloomer, 37 N.J. Super. 85, 94 (App. Div. 1955).

Appellate review of a trial court's attorney fee determination is deferential. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). We will only disturb the trial court's determination "'on the rarest of occasions, and then only because of a clear abuse of discretion'" based on the record presented on the fee application. Ibid. (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

We have considered appellant's argument in light of the record and applicable law and conclude that the argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The trial court reconsidered the attorney fee application, applying the nine Bloomer factors and the criteria of RPC 1.5(a). Accordingly, we affirm substantially for the reasons expressed by Judge Derman in her memorandum of decision of June 8, 2007. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Appellant contends that the trial court failed to analyze the time spent by the attorney in the performance of his services; the nature, extent, and difficulty of the services rendered; and the results obtained. We disagree.

In reconsidering the attorney fee award, the trial court was not writing on a clean slate. The trial court had previously considered and analyzed the attorney's affidavit of services submitted in accordance with Rule 4:42-9(b) and RPC 1.5(a). Although the trial court had acknowledged that the initial attorney fee request was high, the court determined that the services rendered and the hourly fee charged were reasonable, considering the amount of services rendered in overseeing the Trust that was caused primarily by the actions of appellant.

On appeal, we did not question the necessity or reasonableness of the services rendered and the fees charged, as approved by the trial court. The remand was limited to the trial court's reconsideration of Warner's counsel's fee application in light of Warner's deficient performance concerning investments, for which he was responsible, and of the unreasonable position he took earlier on in the litigation. The trial court complied with this court's direction by reducing the attorney fee award by 10%, determining that "[t]o the extent that [appellant's] objections, letters and motions related to Warner's inaction, then Warner is responsible for his own attorneys' fees." Because of the trial court's familiarity with the extensive, tortuous history of the litigation, we do not find a clear abuse of discretion in the amount of the fee awarded.



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