April 13, 2009
IN THE MATTER OF THE ESTATE OF BERNARD OLCOTT, DECEASED.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, Docket No. 293502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued by Telephone March 26, 2009
Before Judges Skillman and Grall.
This is an appeal from a final judgment entered on September 3, 2008, which granted summary judgment in favor of plaintiff David Feinsilver, executor of the estate of Bernard Olcott, enjoining defendant Ralph Jan Ward from seeking to contest the January 10, 2007 admission to probate of Olcott's 1997 will and 2004 codicil.
Between 2000 and 2006, Olcott, a New Jersey businessman, made "advances" and loans to Ward, a Bahamian businessman, of $4,255,289 for construction of a luxury condominium and another development project in the Bahamas. The loans were based on 10% notes and secured by mortgages on the properties in the Bahamas. Olcott's 1997 will, as amended by the 2004 codicil, bequeathed his entire estate in equal shares to his three adult children. Olcott died in Hudson County on December 30, 2006.
The 1997 will and 2004 codicil were admitted to probate in the Hudson County Surrogate's Court on January 10, 2007.
During Olcott's final illness, when he was comatose, Ward informed Feinsilver that Olcott had executed a new will in the Bahamas on May 4, 2005, under which Ward was a beneficiary.
Despite repeated requests by Feinsilver for production of this purported new will, Ward failed to send a copy of the will to Feinsilver either before or during the period immediately following Olcott's death. Ward alleges that even though Feinsilver was aware of Olcott's purported new will and Ward's interest in Olcott's estate as a result of that will, Feinsilver failed to give him notice that the 1997 will and 2004 codicil had been admitted to probate in New Jersey.
On January 4, 2008, still without a copy of the purported 2005 will in its possession, the estate filed a verified two- count complaint against Ward, seeking (1) restraints prohibiting him from probating the purported 2005 Bahamian will, and (2)(A) declaring the purported 2005 will and related estate planning documents to be null and void, or, in the alterative, (B) declaring that Ward's opportunity to contest the 1997 will and 2004 codicil had expired six months after their admission to probate, i.e., on July 10, 2007.
On January 7, 2008, the trial court entered an order to show cause, including temporary restraints, requiring Ward to litigate his claims against Olcott's estate exclusively in the Chancery Division in Hudson County and enjoining him from asserting control over any of Olcott's assets. On the return date, the court entered an unopposed order making the restraints permanent, setting the Hudson County Chancery Division as the exclusive court of jurisdiction, and setting a March 14, 2008 deadline, which was later extended to March 27, 2008, for all parties to make claims.
On February 15, 2008, Ward's New Jersey counsel contacted Feinsilver with an offer to present the purported 2005 will to him, and on March 21, 2008, Feinsilver viewed the purported 2005 will for the first time.
Ward filed a certification in opposition to the estate's complaint, which the trial court treated as an answer.
Thereafter, the estate filed a motion for summary judgment. In support of the motion, Feinsilver submitted a certification which alleged that "throughout the period following the January 10, 2007 Probate of [Olcott's New Jersey] will, Mr. Ward acknowledged his awareness of such probate proceedings." In a supplemental certification, Feinsilver alleged:
On June 6, 2007, I had two (2) telephone conversations with Mr. Ward. During these telephone conversations, Mr. Ward told me, among other things, that he was very upset that Thomas P. Bado (the original Executor) had probated Mr. Olcott's 1997 Will (and 2004 codicil) . . . .
The estate also submitted an affidavit by Thomas P. Bado, the original executor, which alleged:
3. In February, 2007, shortly after the Decedent's January 25, 2007 memorial service (to which Ralph Jan Ward sent a representative from the Bahamas), I received a telephone call from Mr. Ward.
4. Mr. Ward placed that February, 2007 telephone call to me to complain about my probating Mr. Olcott's 1997 Will (and 2004 codicil thereto), as he claimed to have advised "everyone" that he allegedly had Mr. Olcott's last will.
5. In response thereto, I advised Mr. Ward that Mr. Feinsilver, as the Estate's attorney, had made multiple requests for a copy of any alleged will in Mr. Ward's possession; that Mr. Ward had refused to produce any alleged will, and that, as a result, to the best of my knowledge, the 1997 Will was the Decedent's last will.
6. I also requested of Mr. Ward that, if he really had such a will, that he should provide Mr. Feinsilver with a copy.
7. Mr. Ward never furnished me with a copy of any will.
In addition, the motion was also supported by an affidavit of Joanna Weingardner, who identified herself as "the officer manager, in house accountant and paralegal of The Feinsilver Law Group, P.C.," which alleged:
2. On May 14, 2007, Mr. Ward telephoned FLG's office, and asked for Mr. Feinsilver. I answered the telephone.
3. When I advised Mr. Ward that Mr. Feinsilver was not in the office, he inquired as to my position, and quickly ascertained that I was fully familiar with the late Bernard Olcott; Thomas P. Bado and the Estate of Bernard Olcott. Mr. Ward then commenced to complain bitterly to me that Thomas P. Bado should not have probated Mr. Olcott's 1997 Will, as he had knowledge that Mr. Olcott had executed a Bahamian will.
6. I had another telephone conversation with Mr. Ward on June 6, 2007. During that telephone conversation, Mr. Ward again bitterly complained to me about Mr. Bado probating the 1997 Will.
In opposition to the estate's motion for summary judgment, Ward submitted a certification which contained a conclusionary allegation that "I was never placed on notice that the New Jersey Will had been admitted to probate."
On June 25, 2008, the trial court entered an order denying the estate's motion. The order was not accompanied by any opinion. It simply stated: "Questions of material fact exist that preclude the entry of summary judgment." The order also authorized Feinsilver to take the depositions of Ward and the witnesses to the execution of the purported Bahamian will.
The estate filed a motion for reconsideration of the denial of its motion for summary judgment or, in the alternative, an expedited discovery schedule and hearing date. The estate relied in support of its motion upon the previously submitted certifications and affidavits of Feinsilver, Bado and Weingardner. The estate argued that Ward's conclusionary statement that "I was never placed on notice that the New Jersey Will had been admitted to probate" was insufficient to create a contested issue of fact as to whether Ward had actual notice of the admission to probate of Olcott's 1997 will and 2004 codicil.
The motion was argued orally on August 11, 2008. Ward appeared pro se by telephone from the Bahamas.
The trial court denied the motion for reconsideration on the ground that the estate had not presented anything new that had not been before the court on June 25, 2008. However, the court granted the estate's alternative motion for an expedited discovery schedule and hearing date.
On August 11, 2008, the trial court entered a case management order which provided, among other things, that the
"[p]reviously propounded interrogatories by [the estate] must be answered within 10 days hereof," and that "[d]epositions must be completed by September 1, 2008." This order also provided that there would be a "plenary hearing" on September 3, 2008 at 2:30 p.m. at which Ward would appear "by phone."
The estate followed up with emails scheduling Ward's deposition in the Bahamas on September 1, 2008, followed by a formal notice to take his deposition on that date as well as a demand for production of documents at the deposition. On the scheduled date of the deposition, Ward failed to appear. Ward also failed to seek an adjournment of his deposition. When Ward failed to appear, Feinsilver made a statement for the record to the certified reporter who was to transcribe
Ward's deposition, which stated in part:
It is now 12:02 p.m. The reporter and I have been here since 9:45 a.m. at the boardroom; more particularly, the Cove boardroom.
Our purpose has been to take the Court ordered deposition of Ralph Jan Ward, pursuant to case management order entered and filed on August 11, 2008, which has been marked as Exhibit 1 for this deposition.
As per composite Exhibit 2, today is the date that was personally selected by Mr. Ward.
Mr. Ward has advised that he could not attend a deposition in New Jersey because he is precluded from leaving the island and has surrendered his passport for reasons that are unrelated to this civil action.
As per Exhibit 3 which is an e-mail dated Saturday, August 23, 2008, at 1:32 p.m., Mr. Ward states, "The 1st is fine for me. It's not my fault that it's your holiday. I thought we had already agreed that."
Pursuant to Exhibit 4, which is an e-mail from myself to Mr. Ward that was sent on Thursday, August 28 at 6:22 p.m., I confirmed that Mr. Ward's deposition would be taken today at the Cove Boardroom at 10:00 a.m.
Mr. Ward was advised that arrangements were made with a court reporter for today's proceeding.
Numerous attempts have been made to reach Mr. Ward between 10:00 a.m. and 12:02 p.m. by calling the only telephone number that I have for Mr. Ward, which is (242)425-7984, which I believe to be his cell phone number. We have gotten a quick busy signal, a slow busy signal or, after the phone has rang several times, three beeps.
By reference to the BTC 2008 telephone directory, both the reporter and I have separately spoken with Gloria Ward, whose listing appears in the telephone book as: "Ward Gloria - Gladiator Road, PO Box 4563, and whose number is 323-5187. That is the same post office box Mr. Ward has given the Court.
Gloria has confirmed to each of us that she is indeed the mother of Jan Ward. The first telephone call that was placed by the reporter, Gloria advised that Mr. Ward had just "stepped out" and would be returning. The reporter left her name and number.
A half hour later, I spoke with Gloria Ward myself. She confirmed to me that she is indeed the mother of Ralph Jan Ward. Gloria advised that Mr. Ward had left and she didn't know when he was returning. I left her my name and telephone number, (973)441-5600, which phone has been working; I have been receiving and placing telephone calls on it.
During the last two hours, I've also sent an e-mail from my Blackberry to Mr. Ward at his e-mail address of Jwardlaw5@hotmail.com, and have received no response.
In addition to using my Blackberry phone for telephone calls and e-mails, I arranged for an associate at my office, H. Jonathan Rubinstein, to come to the office solely for the purposes of this deposition in case there were any complications or I needed any documents or information.
Mr. Rubinstein has placed and used our telephone office line of (973)376-4400 and has monitored our fax line and office e-mails and he has been unable to reach Mr. Ward, and my office has not received anything from Mr. Ward.
In attempting any way possible to connect with Mr. Ward, the reporter, Laura H.R. Farmer of Bahamas Reporting Services called the law firm of T. Langton Hilton & Co. at (242)322-4080. She first asked for G. Gregory Hilton and was advised that he was in court.
She next asked for his brother Philip Hilton, whose voice she is familiar with, and spoke with Philip and advised him of the present circumstances and that we were still waiting for Mr. Ward and hoping that he would arrive at the Cove boardroom. Mr. Philip Hilton advised the reporter that he would attempt to reach out for his brother
G. Gregory to see what if any assistance the
T. Langton Hilton & Company law firm could give in having Mr. Ward appear for his deposition.
It is now 12:15 p.m., and it is clear that further waiting would serve no purpose.
In light of Mr. Ward's non-appearance, these proceedings are concluded for the day.
Ward also failed to answer the interrogatories that had been previously propounded upon him, as required by the August 11, 2008 case management order, or requests for admissions served upon him on August 26, 2008.
Plaintiff failed to appear for the September 3, 2008 plenary hearing. The estate's attorney recited the background of the matter, including Ward's failure to appear for his scheduled deposition, and again asked the trial court to reconsider its denial of the estate's motion for summary judgment.
The court granted this motion, stating:
I entered an order for the sole purpose to accommodate Mr. Ward, among other things, to delve into this issue of notice, and Mr. Ward has been given every opportunity to meet that deposition deadline and he's failed to do so. He's violated my order.
I believe [Rule] 4:49-2 is appropriate here and I'm granting the motion for limited reconsideration in this matter and I will enter an order that the time for Mr. Ward to file a caveat to challenge the January [10, 2007 probate of the] will expired on July 10, '07, and having failed to contest or challenge that judgment within the time period provided by Rule 4:85-1, he's barred from seeking to contest or challenge that judgment admitting the 1997 will and the 2004 codicil to probate in this or any other jurisdiction.
I am also striking his responsive pleading and I am prohibiting him, I am permanently restraining him from seeking probate of the 2005 will in this or any other jurisdiction, and I am permanently restraining and barring him from bringing any claim against the estate except as allowed under the last will and testament of Mr. Olcott.
The trial court then entered judgment memorializing this ruling.
Ward presents the following arguments in support of his appeal from the judgment:
POINT I: THE COURT ABUSED ITS DISCRETION IN GRANTING THE MOTION FOR RECONSIDERATION PURSUANT TO R. 4:49-2 AS THE MOTION HAD ALREADY BEEN DENIED ON AUGUST 11, 2008 AND THERE IS NO AUTHORITY FOR A RECONSIDERATION OF A DENIAL OF MOTION FOR RECONSIDERATION NOR COULD THE COURT CONSIDER NEW MATTERS OUTSIDE OF THE ORIGINAL PLEADINGS LET ALONE BY A MOTION FOR SUMMARY JUDGMENT FILED AFTER THE ACTUAL HEARING.
POINT II: THE COURT ABUSED ITS DISCRETION
IN STRIKING APPELLANT'S ANSWER AND AFFIRMATIVE DEFENSES AND ENTERING JUDGMENT AS A SANCTION WHEN IT HAD NO BASIS TO CONCLUDE THAT APPELLANT'S FAILURE TO ATTEND HIS OWN DEPOSITION WAS WILLFUL.
POINT III: THE COURT SHOULD HAVE CONSIDERED
THE ACTIONS OF THE ESTATE'S ATTORNEY AND WHETHER HIS ACTIONS ESTOPPED THE ESTATE FROM ASSERTING THE SIX (6) MONTH NOTICE REQUIREMENT PRIOR TO ENTERING JUDGMENT.
POINT IV: THE COURT SHOULD RULE THAT THE
APPELLANT WAS DENIED DUE PROCESS BY NOT BEING TELEPHONICALLY PRESENT AT THE HEARING AS THERE IS NO EVIDENCE THAT HE INTENTIONALLY FAILED TO ATTEND SAME.
We reject these arguments and affirm the September 3, 2008 judgment.
Under Rule 4:46-2(c), a motion for summary judgment should be granted:
[I]f the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.
Under this rule, "bare conclusory assertions in an answering affidavit are insufficient to defeat a meritorious application for summary judgment." Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).
We question whether Ward's conclusory statement that "I was never placed on notice that the New Jersey Will had been admitted to probate" was sufficient to defeat the estate's motion for summary judgment. The estate's motion was supported by affidavits of persons who alleged that they had had specific conversations with Ward on specific dates regarding the admission to probate of the 1997 will and 2004 codicil. If Ward claimed that those conversations did not occur or that the contents of the conversations were different than what was described by the affidavits, he could and should have filed an answering certification or affidavit that specifically addressed those alleged conversations rather than relying upon a general conclusionary denial that he was "placed on notice" of the probate of the New Jersey will.
We also note that even this conclusionary statement falls short of a categorical denial of knowledge of the probate of the will. Ward's assertion that he was not "placed on notice" of the probate of the New Jersey will could be construed as simply a denial of the receipt of formal notice. However, even if Ward was not given formal notice, he would be barred from challenging the admission of the will to probate if he had actual notice by other means, see In re Estate of Green, 175 N.J. Super. 595, 597-98 (App. Div. 1980); In re Will of Landow, 83 N.J. Super. 110, 114-15 (App. Div. 1964), which was what the certifications and affidavits in support of the estate's motion for summary judgment asserted.
Moreover, even if we assume that the trial court, in an abundance of caution in order to allow the facts to be flushed out through the discovery process, properly denied the estate's motion for summary judgment, see Laidlow v. Hariton Mach. Co., 170 N.J. 602, 619 (2002), the court had continuing authority to reconsider the appropriateness of summary judgment following the completion of such discovery or, as occurred in this case, the thwarting by Ward of efforts to complete discovery. See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987) (holding that a "trial court has the inherent power, to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment"), certif. denied, 110 N.J. 196 (1988); accord Dickson v. Selective Ins. Group, Inc., 363 N.J. Super. 344, 349 n.3 (App. Div. 2003), certif. denied, 178 N.J. 453 (2004).
This was an appropriate case for the exercise of this inherent power. The affidavits submitted in support of the estate's motion for summary judgment were sufficient to demonstrate the estate's entitlement to summary judgment. Even if Ward's conclusory denial that he was placed on notice of the probate of the New Jersey will was sufficient to defeat summary judgment at a stage in the litigation when discovery had not been completed, there were significant procedural developments during the period after June 25, 2008, when the trial court first denied defendant's motion for summary judgment. Ward failed to provide the estate with any of the discovery required by the court's August 11, 2008 case management order: he failed to provide answers to interrogatories within ten days, as required by that order, failed to appear for his deposition, and failed to respond to the requests for admissions served upon him or to seek additional time for a response.*fn1 In addition, Ward failed to appear for the scheduled plenary hearing on the notice issue. Under these circumstances, it was appropriate for the trial court to reconsider the indulgence it had previously extended to Ward in denying the estate's motion for summary judgment based solely on his conclusionary statement that he had not been placed on notice of the probate of the New Jersey will and to grant the estate's motion based on its previously submitted affidavits.
Ward's "law of the case" doctrine, estoppel and due process arguments are clearly without merit. R. 2:11-3(e)(1)(E).