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Ridgway & Stayton, L.L.C v. Grace Hettinger

February 9, 2011

RIDGWAY & STAYTON, L.L.C., PLAINTIFF-RESPONDENT,
v.
GRACE HETTINGER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2331-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Meyers, Deceased.

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 ...


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