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In the Matter of the


May 17, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Gloucester County, Docket No. 07-955.

Per curiam.


Submitted May 2, 2011

Before Judges Reisner and Sabatino.

In this unopposed appeal, plaintiff Rocco S. Stezzi, Jr., pro se, appeals the Chancery Division's sua sponte order dated December 9, 2008 summarily dismissing his complaint in this litigation challenging his late father's will. For the reasons that follow, we vacate the dismissal order and remand this matter to the trial court for further proceedings.

Plaintiff's contentions relate to a will that his father, Rocco S. Stezzi, Sr., executed in July 2006. The will left the father's entire estate to plaintiff's sister, Kathleen Ferrante, naming her as the executrix.*fn1 Plaintiff alleges in his pleadings, upon information and belief, that the father's 2006 will superseded an earlier will from 1984, which plaintiff contends that the father executed at or around the same time plaintiff's mother executed her will. Plaintiff contends, also upon information and belief, that the 1984 wills of both parents had reciprocal terms. In the mother's will, a copy of which plaintiff supplied in the record, she left all of her assets to the father, with her children (including plaintiff) and her grandchildren designated as contingent beneficiaries. Plaintiff has not furnished a copy of the father's alleged reciprocal will from 1984.

The mother predeceased the father in October 2006, and her will was probated in Pennsylvania. The father died in August 2007, at the age of ninety-one. Shortly thereafter, Ferrante submitted the July 2006 will to be probated in the Chancery Division. In February 2008, plaintiff filed a pro se complaint in the Chancery Division in an effort to invalidate the July 2006 will, which had disinherited him.

After filing the complaint, plaintiff retained counsel to represent him in the litigation. His attorneys then drafted and filed a four-count amended complaint. The first count of the complaint alleged that the father had suffered from dementia beginning as early as 2005, and that he lacked the capacity to make the 2006 will. The second count of the amended complaint alleged that Ferrante exercised undue influence over the father, who had lived with her full time since March 2005 and had become dependent upon her after the mother's death. The second count further alleged that Ferrante arranged to have decedent's insurance policies transferred to New Jersey, that she took control of the father's financial decisions, and that she took improper advantage of her confidential relationship with her father. The undue influence count further alleged that, over the last few years of the father's life, Ferrante denied plaintiff access to his father.

Both the first and second counts of the amended complaint sought a declaration that the father's 2006 will was invalid, and a declaration that either the supposed 1984 will be enforced or, alternatively, a declaration that the father died intestate, thereby enabling plaintiff to receive a share of the father's estate under the intestacy statutes. The third count of the amended complaint sought an accounting from Ferrante (as power of attorney) of the disposition of the father's assets during his lifetime, and the fourth count requested an accounting from her (as executrix under the 2006 will) of the disposition of the assets of the father's estate.

Eventually, disagreements arose between plaintiff and his counsel, which culminated with the court granting counsel's request to be relieved in October 2008.

Plaintiff and opposing counsel for Ferrante appeared in court on December 9, 2008 for a case management conference to review the status of the litigation. The conference had been arranged by the court in lieu of trial after plaintiff had advised the court that he was not prepared to proceed on the date listed for trial. As the judge described it at its outset, the purpose of the conference was to ascertain "what needs to be done to prepare for a full, final hearing, and how long that's going to take."

After lengthy colloquy on the record at the case management conference, the trial judge summarily dismissed the complaint, sua sponte. The judge essentially found that plaintiff was not prepared to try the case and that the legal basis of his contentions had not been sufficiently articulated. On December 15, 2008, the judge amplified on the record his rationale for dismissing the complaint. The judge perceived, among other things, that plaintiff's request for relief was unclear and that his pro se arguments were not comprehensible, that plaintiff lacked a sufficient understanding as to how the case would proceed and what the issues were; that he "exhibited a clear misunderstanding" of the discovery process; and that he "exhibited a clear intention not to cooperate with the [c]court and not to cooperate with opposing counsel in terms of discovery." The judge also noted that plaintiff had sent numerous pieces of correspondence to the assignment judge, the local judicial ombudsman, and others in the courthouse, apparently expressing dissatisfaction with how his case was being handled. The judge also alluded to cases in other tribunals in which plaintiff's claims had been dismissed as unmeritorious. The judge explained that he was referring to those other cases for illustrative purposes, and that he was not citing them as authoritative.

This appeal followed. Plaintiff contends that the dismissal of the complaint was contrary to Rule 4:37-2; that he was denied due process; that the trial court unfairly sanctioned him; that the court's post-hearing amplification of its reasons was improper; that the court should not have referred to other litigation involving him; and that the court improperly communicated with defendant's counsel about outstanding discovery. As we have already noted, plaintiff's appeal is unopposed.

Having considered the record supplied to us and the procedural posture of the case in the trial court, we vacate the court's sua sponte order of dismissal and remand for further proceedings. In doing so, we appreciate the trial court's frustration in dealing with a pro se litigant who presented difficulties and who was often digressive and at times disrespectful. Even so, the record furnished to us does not reflect that plaintiff was given appropriate notice prior to the case management conference that his complaint could be dismissed that day as a sanction if he was unable to proffer viable evidentiary support for the legal assertions set forth in his amended complaint. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (setting aside the trial court's sua sponte order summarily dismissing a complaint after a conference on the scheduled trial date, where the plaintiff had failed to satisfy the judge's concerns about the sufficiency of his claims). Plaintiff was not found in specific violation of the terms of any prior court orders. Cf. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 520 (1995) (holding that the trial court did not abuse its discretion in dismissing a complaint, upon defendant's motion, due to plaintiff's "deliberate disregard of discovery orders"). Notably, defense counsel did not move for dismissal, despite being invited by the court at the management conference to state his position. There was no motion pending for summary judgment. Under the circumstances, the sua sponte order of dismissal was premature. See Klier, supra, 337 N.J. Super. at 84-85.

We consequently remand the matter for additional proceedings. In doing so, we note that the same outcome on the merits may or may not ensue, after either dispositive motion practice is conducted under Rule 4:46, or after proofs are adduced at a trial. We simply hold that the dismissal was premature and was not preceded by the appropriate notice and procedural safeguards.

Vacated and remanded. Jurisdiction is not retained.

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