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In the Matter of the

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 5, 2011

IN THE MATTER OF THE IRREVOCABLE FUNDED LIFE INSURANCE TRUST ESTABLISHED BY JOSEPH WEINBERG U/A DATED MAY 11, 1982.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, Docket No. 02-01078.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Parrillo, Yannotti and Espinosa.

Joseph Weinberg created two trusts for the benefit of his daughters, Lynn Weinberg (Lynn) and Deborah Bort (Deborah), the Irrevocable Funded Life Insurance Trust (the 1982 Trust) and the Joseph Weinberg Revocable Trust (the 1997 Trust). In addition, Joseph named Lynn and Deborah as the beneficiaries of his estate in his will. This is the third appeal brought by Lynn regarding the administration of the 1982 Trust. In this appeal, Lynn requests "a remand of this entire case so all the evidence that was withheld and the evidence in the record can be reviewed and examined, all discovery fully produced, and that a plenary hearing be held on the disputed assets and issues." We affirm.

The facts regarding this estate, the two trusts, and much of the protracted litigation history are set forth in our unpublished opinion following Lynn's first appeal, In the Matter of the Irrevocable Funded Life Ins. Trust Established by Joseph Weinberg, U/A dated May 11, 1982 (Weinberg I), Docket No. A-4036-03 (App. Div. July 20, 2006), certif. denied, 189 N.J. 649 (2007), supplemented in our unpublished opinion following Lynn's second appeal, In the Matter of the Irrevocable Funded Life Ins. Trust Established by Joseph Weinberg, U/A dated May 11, 1982 (Weinberg II), Docket No. A-5836-06 (App. Div. May 12, 2008), certif. denied, 196 N.J. 597 (2008), and need not be repeated at length here.

Joseph was a resident of Florida when he died in March 2001. In 2002, Lynn and Deborah entered into a settlement agreement in Florida that resolved their disputes regarding the estate and the 1997 Trust. That settlement provided that Lynn become the sole executor of the estate, the sole trustee of the 1997 Trust and the sole beneficiary of both. The settlement agreement expressly provided that it was not to affect the 1982 Trust. Norman Warner, who had been appointed trustee of the 1982 Trust in 1999, remained the trustee for the 1982 Trust, which continued to be for the benefit of both Lynn and Deborah. In short, as a result of the settlement, Lynn and Deborah remained equal beneficiaries of the 1982 Trust, and Lynn became the sole beneficiary of the 1997 trust.

Following the second appeal, Lynn moved in December 2008 and January 2009 for various forms of relief. The trial court entered an order, dated February 24, 2009, which (1) denied Lynn's requests that: Warner be directed to pay the indebtedness of the estate, Warner be sanctioned for his alleged failure to protect the value of 23,500 shares of Amerityre stock, Warner be directed to distribute the Amerityre stock and pay her an underpayment of $22,500; (2) directed Warner's counsel to distribute $20,000 of the Trust to the beneficiaries within fifteen days of the date of the order; (3) directed Warner's counsel to satisfy all outstanding invoices for Susan Servis, Esq., if any, for an amount no greater than $760.67; and (4) set a hearing date and briefing schedule as to the third and final accounting, filed by the Trustee.

After Warner filed the third and final accounting for the period of September 30, 2003 to November 1, 2008, Lynn filed exceptions and the court conducted a hearing. By order dated May 7, 2009, the court allowed the third and final accounting as stated, except as provided in the court's "Supplemental Order" of the same date. The court also allowed income commissions to Warner in the amount of $5,043.35 ($4,992.84 of which had been paid) and principal commissions to Warner in the amount of $14,213.20, to be paid out of the Trust. The court ordered reimbursement of all attorneys' fees, to be paid out of the 1982 Trust, including $115,528.94 to Warner's attorneys. The Supplemental Order provided that:

(1) Within thirty days Warner supply Lynn with copies of statements of the Peapack-Gladstone bank account for the period of September 30, 2003 through November 30, 2008;

(2) Within thirty days Warner's counsel supply Lynn with a copy of the ledger sheet from his prior law firm, Laufer, Knapp, Torzewski, Dalena & Sposaro, LLC;

(3) Warner inquire of Amerityre Corp. as to the existence of any stock certificates belonging to the 1982 Trust, with particular reference to Certificate No. 1139, representing 3,300 shares. As soon as an answer is received from Amerityre, Warner shall provide an answer to Lynn and copy the court, but no later than forty-five days of the date of this order; and

(4) Warner inquire as to the Greka Energy shares and provide an explanation as soon as it is received to Lynn and the court, but no later than forty-five days of the date of this order.

Approximately five months later, Lynn filed a motion to enforce the Supplemental Order, for discovery, and sanctions. After hearing oral argument, the trial court entered a final order, dated December 4, 2009, closing this case and providing for the following:

(1) Denying Lynn's motion for full enforcement of the May 7, 2009 Supplemental Order, production of documents, and sanctions;

(2) Denying Lynn's request that Warner reimburse, within thirty days, the Trust $30,000 for the loss in value of the 3,300 shares of Amerityre stock;

(3) Denying Lynn's request to sanction Warner's counsel;

(4) Denying Lynn's request that Warner return all commissions to the Trust and, within thirty days, reimburse the Trust $20,000 for the loss of the value of the 1,914 shares of Greka Energy Stock;

(5) Directing Warner's counsel to pay Lynn the $760.67 previously tendered to Susan Servis, Esq., by December 18, 2009;

(6) Denying Lynn's request for Warner's counsel to produce all ledger sheets from his previous firm;

(7) Denying Lynn's request that Warner, within thirty days, produce the Peapack Gladstone Trust statements and copies of cancelled checks for the months of April 2003 through September 2003;

(8) Denying Lynn's request to disallow the third and final accounting and to stay same until all material issues are fully adjudicated and resolved in New Jersey and Florida;

(9) Directing Warner to execute the documents necessary to transfer the 3,300 shares of Amerityre stock to Lynn within thirty days of such a written request; and

(10) Reaffirming the May 7, 2009 order allowing Warner's third and final accounting.

Lynn filed an appeal from this order and later amended her Notice of Appeal "to encompass all the previous earlier interlocutory Orders and rulings that lead [sic] to the final Order of 12/4/10." She presents the following issues for our consideration as arguments in her Statement of Facts:

POINT I

THE TRIAL COURT OVERLOOKED MY FIDUCIARY DUTIES AS PERSONAL REPRESENTATIVE OF THE FLORIDA ESTATE AND TRUSTEE OF THE FLORIDA 1997 TRUST ENTIRELY, RESULTING IN THE LOSS OF THE FLORIDA ESTATE AND 1997 TRUST IN THIS NEW JERSEY CASE AND JURISDICTION.

POINT II

THE TRIAL COURT ERRED IN DENYING ALL MY EXCEPTIONS TO THE ACCOUNTINGS AND APPROVED ALL ACCOUNTINGS DESPITE THEIR SUBMITTING TWO (2) ENTIRELY DIFFERENT FIRST ACCOUNTINGS POINT III

THE TRIAL COURT ERRED IN ALLOWING TRUSTEE TO REMOVE AND CLAIM FLORIDA TRUST ASSETS AS NEW JERSEY TRUST ASSETS WITHOUT HOLDING AN EVIDENTIARY HEARING AND DESPITE ALL GENUINE ISSUES OF MATERIAL FACTS, THEREBY VOIDING THE FLORIDA "DEED OF DISCLAIMER"

POINT IV

THE TRIAL COURT ERRED IN AWARDING LEGAL FEES TO DONALD FRASER JR., ESQ. WHEN HIS FEES WERE DENIED IN THE 4/4/03 ORDER AND OVERLOOKED HIS INTENTIONAL MISCONDUCT, NUMEROUS VIOLATIONS, CONFLICTS OF INTEREST, & WILLFULLY ASSISTED HIS CLIENT IN VIOLATING THE FLORIDA SETTLEMENT AND FLORIDA ORDERS IN THIS NEW JERSEY CASE AND JURISDICTION

POINT V

THE TRIAL COURT ERRED IN DISSALLOWING THE EVIDENCE INTO THE RECORD WHICH WOULD HAVE CORRECTED THE FACT FINDING ERRORS BY THE TRIAL JUDGE AND THE ERROR IN PROCEDURE WHERE ALL RELEVANT DOCUMENTS AND EVIDENCE WERE SUBMITTED TO THE GUARDIAN AD LITEM INSTEAD OF INTO THE RECORD POINT VI

THE TRIAL COURT ERRED IN ITS AWARDING EXCES[S]IVE FEES TO MR. TORZEWSKI OVERLOOKING HIS CONFLICTS OF INTERESTS, LONGSTANDING NONCOMPLIANCE OF THE TRUST, ORDERS AND DISCOVERY, THE SUBSTANTIAL LOSSES TO THE TRUST, AND REASONABLENESS REGARDING HIS ASSIGNING FO[U]RTEEN (14) ADDITIONAL COLLEAGUES WHO ALSO CHARGED THE TRUST. THIS WAS DONE WHILE OVERLOOKING THE SUBSTANTIAL LEGAL FEES AND ONGOING ADMINISTRATIVE EXPENSES HE CAUSED THE FLORIDA ESTATE, 1997 TRUST AND MYSELF TRYING TO HAVE THE TRUST AND ORDERS ENFORCED AND THE

FLORIDA SETTLEMENT AND FLORIDA ORDERS UPHELD. POINT VII

THE TRIAL COURT ERRED IN NOT ENFORCING THE APPELLATE DECISION TO EQUALLY DIVIDE THE TRUST OR BOTH BENEFICIARIES['] REQUESTS TO DISTRIBUTE THE TRUST "IN-KIND", ALLOWING AN UNEQUAL AND UNFAIR DISTRIBUTION POINT VIII

THE TRIAL JUDGE WAS BIASED AND ERRED IN DENYING ALL MY PLEADINGS TO ENFORCE THE TRUST AND PREVIOUS ORDERS TO ENABLE ME TO SAVE MY CO OP IN THE ESTATE POINT IX

THE TRIAL COURT ERRED IN AWARDING THE TRUSTEE'S COMMISSIONS AND FEES DESPITE THE APPELLATE DIVISION'S 2006 DECISION DENYING HIS COMMISSIONS AND FEES, DESPITE THE NEWLY APPOINTED GUARDIAN AD LITEM'S OPPOSITION TO HIS COMMISSIONS AND FEES, AND DESPITE THE FURTHER SUBSTANTIAL LOSSES AND DAMAGES HE CAUSED THE TRUST, ESTATE AND 1997 TRUST In addition, Lynn presents two issues as "Legal Arguments." In the first "Legal Argument," she argues that summary judgment was premature, that the probable intent of the entire estate plan was overlooked, that the Florida Deed of Disclaimer was overlooked, that Deborah, her attorney and Warner's counsel tortiously interfered with the Florida settlement agreement, that she was prejudiced by improper remarks by adversary counsel, that discovery was terminated prematurely, that the trial court erred in approving an underpayment to her in the final distribution, that there needs to be re-examination of losses allegedly caused by the trustee, and that the trustee violated his fiduciary duties. In her second "Legal Argument," she asks this court "to review the attorney conflicts of interest and misconduct that transpired in this case, and the excessive legal fees [the trustee's attorney] charged in this case."

After carefully considering the record and briefs in this matter, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following limited comments.

The 1997 Trust and the administration of the Weinberg estate have never been the subject matter of any litigation in New Jersey and, therefore, the issues relating to the estate and the 1997 Trust raised in Lynn's arguments are not properly before us in this appeal.

All the issues raised in Points II through VI of Lynn's argument were raised and decided in her previous appeals. Further consideration of these arguments is therefore barred by the doctrines of res judicata and collateral estoppel. See First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007); Velasquez v. Franz, 123 N.J. 498, 505-06 (1991). In addition, the issues raised in Points II, III, IV, and VI were not presented to the trial court. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Summers, 176 N.J. 306, 316 (2003); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

In Point VII, Lynn alleges that Warner and Torzewski violated the Appellate Division's July 20, 2006 order to equally split the 1982 Trust in half. In addition, she alleges that her request to distribute the Amerityre stocks "in-kind" was disregarded and, instead, the stock was liquidated and the resulting funds distributed. Warner explained that the 27,500 shares were divided, with 13,750 shares for Lynn and an equal number for Deborah and her daughter, and that the difference in the amounts was attributable to the difference in the manner in which the shares were distributed. While Deborah asked for her distribution to be made partially in cash and partially in stock, Lynn asked that her stock be held until a price of $13 per share was reached, at which time she wanted them. However, the stock never reached $13 per share during the term of the third and final accounting. Accordingly, Warner distributed Lynn's shares to her in-kind, resulting in her receiving the value of the shares at that time. Lynn does not refute this explanation. In Point VII, Lynn also argues that the court erred in not examining why Deborah's attorney never objected to the substantial losses Warner allegedly caused to the 1982 Trust. Deborah's attorney is not a party in this appeal, and his conduct in overseeing Warner's conduct as trustee is not relevant to this appeal.

We discern no merit to Lynn's contention in Point VIII that the trial judge was biased and erred in making rulings that Lynn argues forced her to sell her home.

In Point IX, Lynn challenges the trial court's award of commissions and fees to Warner, arguing that we directed that he was not entitled to any commissions or fees in our decision in Weinberg I. Her argument is based on an erroneous reading of our decision, in which we decided Warner had not earned the commission awarded to him at that time based upon his "inattention to his fiduciary duties during the period between Weinberg's death and the filing of Lynn's complaint," but did not decide that he was foreclosed from earning any commissions in the future.

Lynn erroneously characterizes the proceedings before the trial court as a summary judgment proceeding. This matter concerned the administration of a trust. The trial court properly proceeded in a summary manner as authorized by N.J.S.A. 3B:2-4 and in accordance with Rules 4:83-1 and 4:67.

Finally, Lynn challenges the award of counsel fees to the attorney for the trustee. As Lynn acknowledges, our review of a trial court's determination of counsel fees is deferential. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). We discern no abuse of discretion here.

Affirmed.

20111005

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