February 9, 2011
RIDGWAY & STAYTON, L.L.C., PLAINTIFF-RESPONDENT,
GRACE HETTINGER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2331-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 3, 2010
Before Judges Skillman and Espinosa.
Defendant, Grace Hettinger, appeals from an order that granted plaintiff's motion for reconsideration and entered judgment against her, based upon a Fee Arbitration Committee determination pursuant to R. 1:20A-3. We affirm.
Defendant was appointed as the executrix for the estate of her mother, Grace W. Meyers, in June 2005. After litigation commenced to contest the will, she retained plaintiff law firm, Ridgway & Stayton, LLC. The retainer agreement, signed in April 2006, identified the client as "Grace Hettinger, Executrix for the Estate of Grace W. Meyers, Deceased" and covered all legal work associated with the litigation captioned In the Matter of the Probate of the Alleged Will of Grace W. Meyers, Docket No. CP-196-05, presently pending in the Superior Court of New Jersey, Chancery Division, Probate Part; and, administration of the Estate of Grace W.
Plaintiff continued to provide legal services pursuant to this agreement until January 2007, when a fee dispute arose and new counsel was substituted to represent defendant in the ongoing estate litigation.
By order dated April 10, 2007, defendant was "removed for cause as executrix in accordance with N.J.S.A. 3B:14-21." The litigation was settled in September 2007. The Order for Settlement sets forth the terms of the settlement, including defendant's agreement "to indemnify and hold harmless plaintiff [defendant's sister, Virginia Russell] from any claims that may arise as a result of her tenure as Attorney-In-Fact and Executrix under the Last Will and Testament of Grace W. Meyers."
Defendant sought fee arbitration pursuant to Rule 1:20A-3 and was represented throughout the fee arbitration by counsel. On December 20, 2008, the Burlington District Fee Arbitration Committee entered a determination that plaintiff was due $17,240 from defendant. Defendant neither paid the amount due within thirty days as required by R. 1:20A-3(b)(4) nor filed a notice of appeal within twenty-one days of the determination as required by R. 1:20A-3(d).
Thereafter, plaintiff sent a letter demanding payment, and having no response, filed an order to show cause pursuant to R. 1:20A-3(e) for entry of judgment in accordance with the fee arbitration determination. In opposition, defendant contended that, because she was acting in her capacity as executrix when she retained plaintiff to represent her mother's estate, she bore no personal liability pursuant to N.J.S.A. 3B:14-31, which provides:
Unless otherwise provided in the contract, a fiduciary is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his fiduciary capacity and identify the estate in the contract.
The trial court denied plaintiff's application and ordered that the matter be "remanded to the District Fee Arbitration Committee for consideration of the application of N.J.S.A. 3B:14-31 to the fee dispute." However, the District Fee Arbitration Committee declined to consider the matter further. In response to a letter from plaintiff, the Assistant Ethics Counsel, Statewide Fee Arbitration Coordinator, wrote:
This responds to your request dated December 1, 2009 for appropriate direction from this office as to the proper procedure to follow as a result of the remand of the matter to the District Fee Arbitration Committee by order of Judge Karen I. Suter, J.S.C. dated August 21, 2009.
You requested guidance because Judge Suter's order appears contrary to the provisions of R. 1:20[A]-3(e), which provides in pertinent part that ". . . In any application for the entry of a [summary] judgment [pursuant to R. 4:67] in accordance with this rule, no court shall have jurisdiction to review a fee arbitration committee determination. Said review is reserved exclusively to the Disciplinary Review Board under R. 1:20-15(1)." This proposition has also been supported in Linker v. The Company Car Corporation, 281 N.J. Super. 579 (App. Div. 1995).
Under these circumstances, it appears that you may consider either filing a motion for reconsideration of her order before Judge Suter or file a motion for leave to appeal seeking to vacate the judge's order and to reinstate the fee arbitration award.
Plaintiff filed a motion for reconsideration, asking the court to vacate its prior order and enter judgment against defendant in the amount of $17,240 plus interest and costs.
Defendant opposed the motion. After entertaining oral argument, the court granted plaintiff's motion.
In this appeal, defendant presents the following issues for our consideration:
THE TRIAL COURT ERRED IN OVERTURNING ITS DECISION TO DENY THE ORDER TO SHOW CAUSE.
THE TRIAL COURT ERRED BY FAILING TO DISMISS THE MOTION FOR RECONSIDERATION.
After carefully considering the record, briefs and arguments of the parties, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.
The appeal here was from the court's disposition of plaintiff's motion for reconsideration, which is governed by Rule 4:49-2 and is a matter to be exercised in the trial court's sound discretion. Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). Reconsideration is appropriate when "1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); see also ASHI-GTO Assoc. v. Irvington Pediatrics, 414 N.J. Super. 351, 360 (App. Div 2010). In this instance, the court lacked jurisdiction to enter its initial order, remanding the matter to the Fee Arbitration Committee "for consideration of the application of N.J.S.A. 3B:14-31 to the fee dispute." See R. 1:20A-3(e). Accordingly, the trial court appropriately exercised its discretion to grant the motion for reconsideration and the relief requested.
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