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Frank A. Marinaccio v. Rosemarie Grgec and Suzanne Dapkins

January 4, 2012

FRANK A. MARINACCIO, PLAINTIFF-APPELLANT,
v.
ROSEMARIE GRGEC AND SUZANNE DAPKINS, JOINTLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-12017-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges Grall, Alvarez and Skillman.

Frank A. Marinaccio appeals from a final order of the Chancery Division confirming an umpire's determinations in proceedings conducted pursuant to the New Jersey Alternative Procedure for Dispute Resolution Act (the APDRA), N.J.S.A. 2A:23A-1 to -30. Marinaccio's dispute was with his sisters, Rosemarie Grgec and Suzanne Dapkins, and it concerns the distribution of testamentary trusts. On appeal, Marinaccio contends the judge erred in confirming the umpire's denial of his application to set aside a mediated settlement and the umpire's award of $15,000 for legal fees and costs to his sisters.

Pursuant to N.J.S.A. 2A:23-18b, we dismiss Marinaccio's appeal of the decision on the motion to vacate. We affirm the confirmation of the counsel fee award substantially for the reasons stated by Judge Allison E. Accurso in her oral opinion of March 18, 2011.

I

The testamentary trusts at issue were established by the litigants' parents, Anthony and Anna, and their great-aunt, Angelina. All three of the trusts were for the benefit of Anthony and Anna, and the assets remaining following the death of both parents were to be equally divided among their children. Angelina and Anthony predeceased Anna, who died in 2007. Marinaccio was the sole trustee for the trusts established by Angelina and Anna, and he and Anna were co-trustees of his father's trust during Anna's life and the sole trustee thereafter.

Marinaccio's sisters filed their lawsuit to compel an accounting and distribution of remaining assets after Anna's death. In the midst of pretrial proceedings, the parties agreed to attempt mediation, and they reached and signed an agreement in March 2010. "[I]n full and final satisfaction of all claims raised in" the litigation, Marinaccio promised to give each of his sisters $250,000. The agreement authorized him to make the payments from the net proceeds of the sale of his parents' former home, which he had acquired by deed in 1996. In the settlement with his sisters, Marinaccio promised to "list the house for sale forthwith" and to "keep [his sisters] fully informed as to all activities regarding the sale of the home, including but not limited to the identity of the broker," "any offers," and "any responses" to offers.

The parties further agreed that their attorneys would execute and file a consent order "dismissing the litigation with prejudice, directing the parties to perform in accordance with their settlement agreement, and providing that any disputes shall be resolved by binding arbitration before" the umpire who had mediated the settlement. The consent order further provided that any disputes arising under the settlement agreement would be resolved through arbitration in accordance with the APDRA. Paragraph two of the consent order states: "The parties are directed to perform in accordance with the terms of their settlement agreement." Judge Accurso signed that consent order, and it was filed on March 30, 2010.

About six months after the dismissal of the litigation, Marinaccio's sisters moved before the umpire for an order declaring Marinaccio in violation of their agreement due to his failure to keep them informed and make his best effort to sell the house. He had rejected an offer that exceeded the $500,000 settlement by several hundred thousand dollars without informing them. Relying upon Rule 1:10-3, the sisters also sought compensation for fees and costs incurred in enforcing the March 30, 2010 order. In response, Marinaccio moved to vacate the settlement. He claimed entitlement to that relief based on "newly discovered" evidence - documents pertinent to an accounting of the estates that he had "discovered" in a basement closet of his house. He made that assertion about the documents despite the fact that prior to the settlement, he had claimed he could not comply with discovery because he could not locate the papers.

In considering Marinaccio's motion to vacate the settlement, the umpire applied Rule 4:50-1b, which permits relief where there is "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial . . . ." The umpire concluded that if Marinaccio had conducted a search for the records consistent with "due diligence," he would have uncovered the records prior to the settlement. The umpire also considered the fact that as a trustee and co-trustee Marinaccio had a duty to keep the records.

The umpire's reasons for awarding the sisters $15,000 for fees and costs pursuant to Rule 1:10-3 are set forth in his oral decision of February 16, 2011. The umpire focused on Marinaccio's obligation to perform in accordance with the settlement, which is an obligation stated in the court's order of March 30, 2010. He concluded that Marinaccio had acted in bad faith and violated his obligations by rejecting an offer without advising his sisters of the details. The umpire also determined that an award of counsel fees was necessary to make Marinaccio understand he would be held to the responsibilities he had assumed in the settlement agreement. Noting that the charges enumerated in counsel's certification of services were reasonable and that Marinaccio had not claimed otherwise, the umpire ordered Marinaccio to pay $15,000 of the approximately $30,000 his sisters incurred.

In the Chancery Division, Marinaccio sought reversal of the umpire's denial of his motion to vacate, pursuant to paragraph c(5) of N.J.S.A. 2A:23A-13, which applies where the umpire committed "prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution." Ibid. Observing that the umpire had assumed the truth of Marinaccio's account of his discovery of the documents, Judge Accurso turned to consider legal error and found none. She explained that the umpire concluded Marinaccio was not entitled to vacate the settlement because the records he found did not ...


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