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In re Estate of Davidson

June 14, 2010

IN THE MATTER OF THE ESTATE OF ELISABETH WENNING DAVIDSON, DECEASED


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Mercer County, Docket No. 94-00884.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 17, 2010

Before Judges Reisner and Yannotti.

This appeal arises from a probate case in which Hildegarde Wenning Meech objected to an accounting filed by R. Maximilian Goepp III, the executor of the Estate of Elisabeth Wenning Davidson. Goepp now appeals from a July 16, 2008 order of the Probate Part, enforcing a settlement of the accounting dispute and permitting Meech's counsel to file an application for fees.

He also appeals from an October 16, 2008 order denying his motion for reconsideration and awarding Meech's counsel $11,344 in fees.

I.

These are the most pertinent facts. Goepp was appointed executor of his mother Elisabeth Wenning Davidson's estate in 1994. In 2007, Goepp, represented by his attorney Coulter K. Richardson, filed a verified complaint for approval of an accounting and final distribution of the estate. The accounting covered the period 1994 to 2000. The complaint listed Goepp, his sister Meech, and the estate of their late sister Carla E. Goepp, as the residuary legatees of Davidson's estate. According to the accounting, Davidson's estate was insolvent, with the principal creditors being Goepp and his late sister Carla. The accounting sought approval to transfer Davidson's house to Goepp and the estate of Carla, in proportion to the sums they allegedly had loaned Davidson's estate.

Meech filed objections to the accounting, claiming an interest in the Davidson house, objecting to certain estate expenditures, and questioning why title to the house had been transferred into Goepp's sole name. Goepp defended the action, contending that the estate had previously settled with Meech for $60,000 and that the accounting was necessitated only by her refusal to acknowledge the settlement. With the parties' consent, Judge Shuster referred the accounting case to mediation by order dated February 18, 2008.

After a lengthy mediation session, the parties signed a four-page handwritten settlement agreement dated February 22, 2008. There is no dispute that Goepp's attorney Coulter Richardson acted as the scrivener of the handwritten agreement. In pertinent part, the agreement provided that the estates of Elisabeth Wenning Davidson and Carla Goepp would pay Meech $50,000, and would also bear all of the costs for the accounting litigation. Goepp agreed to transfer to Meech his 25% interest in a Vermont property. Under the agreement, if there were insufficient funds in the estates to pay Meech and the litigation expenses, the Davidson house was to be sold to raise the necessary funds.

Under the agreement, Richardson was to prepare a typed formal version of the settlement for review by Meech's counsel. If the parties could not agree on the appropriate language, they authorized the mediator "to finalize the language consistent with the agreement in mediation." The mediator drafted a typed version of the agreement, which provided that if the house was sold, Goepp would pay the closing costs. After Goepp refused to sign the typed agreement, Meech filed a motion on May 23, 2008 to enforce the settlement. The motion was supported by a certification from Meech's counsel attesting to the settlement.

In response to the motion, Ambrose Richardson, the named partner in the firm that employed Coulter Richardson, sent Judge Sypek a letter dated June 6, 2008, stating that Goepp's attempt to "avoid or modify" the settlement placed his law firm in a conflict of interest, because his firm also represented several of Goepp's creditors who would benefit by the settlement. Additionally, Ambrose indicated that to the extent Goepp intended to argue that he did not knowingly or voluntarily sign the agreement "we could not advocate that position in good faith."

The letter noted that Meech's counsel and the mediator "spoke of criminal referrals, which may have intimidated Mr. Goepp." The letter also advocated on Goepp's behalf certain points that Ambrose asserted should be argued by "non-conflicted counsel." Hence, he asked that the motion be adjourned to allow Goepp to retain new counsel.

On June 18, 2008, Coulter Richardson filed a motion to be relieved as counsel, supported by a certification from Ambrose Richardson. The certification asserted the economic conflict of interest and the fact that Goepp was refusing to take the firm's advice on the advisability of honoring the settlement. Judge Sypek granted the ...


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