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In the Matter of the

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 21, 2012

IN THE MATTER OF THE ESTATE OF MICHAEL FLEISCHER

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 184571.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012 -

Before Judges Espinosa and Kennedy.

Plaintiff Robin J. Farrington appeals from the dismissal of her complaint, challenging the will of her father, decedent Michael Fleischer, who died on December 23, 2009.

Although she had not seen the contents of her father's will, dated October 5, 1995 (the October 1995 will), plaintiff filed a caveat on January 5, 2010. The will provided that plaintiff and her sister, both decedent's children from a prior marriage, were to inherit $1,000 each, with decedent's second wife, Dolores Fleischer (Fleischer), inheriting the remainder of the estate.

Plaintiff's verified complaint and order to show cause, filed April 15, 2010, alleged that the October 1995 will "was not drafted by the attorney whose name appeared on the Will." Plaintiff claimed that, in 2005, her father drafted an updated will, which he discussed with her. She alleged that Fleischer and her father had domestic violence issues in 1995. Plaintiff alleged further that her father had been the executor of his brother's estate in 2003 and that she was "uncertain" if decedent had commingled assets from that estate with his own.

The trial court signed the order to show cause, which prohibited Fleischer from transferring any of decedent's property, and scheduled a hearing for June 8, 2010. Ralph Elefant, the executor designated in the October 1995 will, filed a verified complaint and order to show cause, seeking to dismiss plaintiff's caveat and admit decedent's October 1995 will to probate. Hearings were scheduled for both orders to show cause on June 8, 2010.

Elefant and Fleischer (collectively, defendants) each filed answers and affirmative defenses to plaintiff's verified complaint. Elefant's answer included a certification from the attorney, George Schonwald, who "absolutely confirm[ed] that [he] did in fact prepare the Last Will and Testament at the request of the decedent[.]" Schonwald further noted that decedent's will was made "freely and voluntarily and was not subject to any duress or undue influence."

On the return date, plaintiff requested an adjournment so she could retain new counsel because her attorney had withdrawn. The court dismissed plaintiff's caveat; dismissed plaintiff's order to show cause and verified complaint without prejudice; admitted the October 1995 will for probate; and enjoined Elefant from making any distributions from the estate for forty-five days.

On July 7, 2010, plaintiff, acting pro se, submitted a second order to show cause and an amended verified complaint. Plaintiff alleged that Fleischer had been after decedent's money from the moment she met him in 1987 and that decedent "felt as though he could not trust his wife with access to his funds" during his lifetime. Plaintiff claimed that on the morning after decedent's death, Fleischer demanded the release of all of decedent's funds. Moreover, despite Schonwald's certification, plaintiff continued to question the "purported scrivener" of the will.

Plaintiff also reiterated her concern that she had been denied an inheritance from her uncle's estate due to decedent's commingling of assets. Plaintiff alleged she was belatedly seeking that inheritance because her father had intimidated her when she sought money from her uncle's estate and had violently and sexually abused her when she was a child. Plaintiff asked the court to freeze decedent's assets; to vacate the order to probate the October 1995 will; and to probate a will dated August 24, 1995 (the August 1995 will), which, she contended, was consistent with decedent's pre-marital agreement with Fleischer and not the product of undue influence.

With the July 7, 2010 complaint and order to show cause pending, plaintiff submitted an August 4, 2010 motion for "reconsideration and opposition" to the court's July 1 probate order. She explained she had previously submitted a timely objection to the probate order in count four of her amended verified complaint. She contended that she later learned the amended complaint and order to show cause were improperly submitted because they failed to include a transcript of the June 8 hearing. As a result, plaintiff sought an extension of the initial order enjoining decedent's executor, Elefant, from making any distributions from the estate for forty-five days.

On August 16, 2010, plaintiff, represented by new counsel, submitted a third verified complaint and order to show cause. In the complaint, plaintiff asked for an accounting of the estates of decedent and various family members based upon her allegation that decedent defrauded her out of receiving funds from several family members' estates. Plaintiff also contended that Fleischer mistreated decedent for years and then, after Fleischer obtained a restraining order against him, decedent executed the October 1995 will in exchange for her withdrawal of the restraining order. Accordingly, plaintiff sought an order freezing decedent's estate and declaring the October 1995 will void because of undue influence and duress.

In addition, for the first time, plaintiff alleged that she received a handwritten birthday card from decedent on January 27, 2009, which she contended should be admitted as a holographic will. The card instructed her to "handle the estate" and split the assets with her sister. In the alternative, plaintiff requested that the court admit the August 1995 will to probate. She claimed that will was consistent with decedent's and Fleischer's pre-marital agreement, which provided that each person's assets would revert to his or her children upon death.

The trial court held a hearing on plaintiff's August 4 motion for reconsideration and August 16 verified complaint on October 12, 2010, and issued an order on October 14, 2010. In pertinent part, the order denied without prejudice plaintiff's motion for reconsideration and ruled that counsel could resubmit the motion if she provided a transcript of the June 8 hearing.*fn1

The order also continued the restraint on the distribution of decedent's assets, pending submission of an accounting. Finally, the court ordered that plaintiff, at her expense, could submit a report from a handwriting expert regarding the January 2009 birthday card.

In early 2011, plaintiff submitted an expert report that analyzed the January 2009 birthday card message and concluded it was written in decedent's handwriting. On February 14, 2011, the parties entered into a consent order, which set forth a discovery schedule and their agreement as to the following: the court would reserve decision on plaintiff's motion for reconsideration; defendants could retain a rebuttal handwriting expert to examine the January 2009 birthday card and submit a report within ninety days after receipt of the original exemplars; plaintiff was permitted "to obtain fingerprinting expert testimony"; and defendants were precluded from distributing decedent's assets.

However, plaintiff failed to supply the January 2009 birthday card despite repeated requests from defendants. Plaintiff blamed her attorney for failing to comply with the order. On April 7, 2011, plaintiff's counsel filed a motion to be relieved as counsel.*fn2 Both Fleischer and the executor filed motions to compel discovery, or, in the alternative, for dismissal of the complaint and counsel fees. Fleischer also sought sanctions for failure to comply.

Plaintiff submitted a certification in opposition to her counsel's motion to be relieved, in which she claimed she had complied with all of the court's orders and her counsel's instructions. Her certification did not address defendants' motions to compel production of the holographic will and request for the dismissal of her complaint.

On May 9, 2011, the trial court granted plaintiff's counsel's motion to be relieved. The court specifically addressed plaintiff's failure to respond to defendants' motions to compel production of the birthday card or dismiss her complaint. After providing plaintiff with a handout discussing ways to obtain counsel, the court warned plaintiff that "time [was] of the essence for [her] to retain alternate counsel" to address the motions, which were returnable June 6, 2011. The court added, You would remain representing yourself as a pro se party in this case unless and until a[n] attorney files what is called entry of appearance on your behalf.

The fact that you're representing yourself at this moment doesn't preclude the [request for] relief from being heard. In fact, there is [a request for] relief that's already calendared to be heard, two motions that place the obligations on you to comply.

They're discovery related motions; they're returnable June 6. So that must be related to any attorney that you might contemplate retaining on your behalf, as they will be heard June 6 and they will have potentially, if they were resolved against you, there's a potentially adverse impact as well. [(Emphasis added).]

Plaintiff failed to file any opposition to defendants' motions prior to the June 6 return date. The hearing was initially scheduled for 10:30 a.m. but was delayed until the afternoon. The court noted on the record that plaintiff was "apparently" present in the morning and then left telephone messages on the court's phone and the Surrogate's phone stating she could not return in the afternoon and mentioning a medical appointment.

At oral argument, defendants stated that plaintiff had not turned over the January 2009 birthday note, and as a result, they had been thwarted in their efforts to conduct an independent examination. The court dismissed plaintiff's August 16 complaint with prejudice and awarded counsel fees to defendants. After receiving certifications from the attorneys, the court awarded counsel fees of $1,831 to Elefant and $3,060 to Fleischer. The court stated,

This is over one year, of an ongoing pattern of noncompliance; and indeed it's not noncompliance with a peripheral or ancillary issue. It's noncompliance with the very issue that allowed the complaint to survive; it's the very essence. . . .

It's an alleged writing intended to be a Will and the plaintiff for one reason or another, only known to herself, has refused to give that writing even to her own attorney.

With that pattern of behavior and no justification provided, this court will enter both parties' request[s].

The court entered an order memorializing its decision on July 1, 2011. Plaintiff filed a motion for reconsideration on July 29, 2011. She stated that she had a "very important medical appointment"*fn3 on June 6 and, because she was pro se, she "was not aware that [she] should have indicated early in the morning" that she could not attend an afternoon hearing. She stated Fleischer's attorney would not speak to her to discuss an adjournment. Further, she contended she had the birthday card but "wasn't going to simply hand him the Birthday Card without discussing it with him at length." However, somewhat inconsistently, she also stated she wished to deliver the card to an expert without allowing defendants to handle or possess it. Plaintiff also contended that her prior counsel never asked her to turn over necessary discovery.

Defendants opposed plaintiff's motion for reconsideration. In particular, Fleischer's counsel denied ignoring plaintiff prior to the June 6 hearing and denied that plaintiff had offered to provide the birthday card. Plaintiff filed a response to defendants' opposition on August 24, 2011.

The trial court held a final hearing on August 29, 2011. At the hearing, plaintiff stated that she had the birthday card with her and was willing to provide it to opposing counsel. The court noted that plaintiff had been provided ample time to turn over the birthday card, which was the basis of plaintiff's theory of the case and something she was required to supply under the parties' unambiguous consent order. The court stated further that plaintiff's note from the doctor was "willfully deficient in terms of describing any medical emergency." The court denied plaintiff's motion and awarded defendants' counsel fees for time spent addressing "thoroughly avoidable" issues. After counsel submitted certifications as to their fees, the court awarded counsel fees of $2,074.50 to Elefant and $2,000 to Fleischer.

Plaintiff presents the following issues for our consideration in this appeal:

POINT I

A HEARING IS REQUIRED TO DETERMINE WHETHER THE HOLOGRAPHIC WILL SHOULD BE CONSIDERED FOR PROBATE AND IF DENIED PROBATE WHETHER THE OCTOBER 5, 1995 WILL IS THE PRODUCT OF UNDUE INFLUENCE.

POINT II

INASMUCH AS FARRINGTON APPEARED IN COURT AND REMAINED THERE FOR OVER THREE HOURS PREPARED TO ARGUE HER POSITION, IT WAS AN ABUSE OF DISCRETION TO DENY HER APPLICATION FOR A SHORT ADJOURNMENT TO MAKE A PREVIOUSLY SCHEDULED MEDICAL APPOINTMENT.

POINT III

THE CHANCERY DIVISION ERRED IN DISMISSING FARRINGTON'S COMPLAINT WITH PREJUDICE, PURPORTEDLY FOR FAILURE TO MAKE DISCOVERY, WHERE NO PRIOR WARNING OR CONDITIONAL ORDER HAD BEEN ISSUED AS REQUIRED BY COURT RULE.

POINT IV

THE CHANCERY DIVISION ERRED IN IMPOSING COUNSEL FEES AND OTHER SANCTIONS AGAINST FARRINGTON WITHOUT WARNING AND WITHOUT MAKING THE REQUISITE FINDINGS - WHICH, IN FACT, COULD NOT BE MADE, BECAUSE FARRINGTON'S CONDUCT WAS NOT FRIVOLOUS.

POINT V

THE CHANCERY DIVISION ERRED IN ACCEPTING UNSWORN AGRUMENT FROM COUNSEL, BASED, AT LEAST IN PART, UPON A BREACH OF CONFIDENTIALITY BY PRIOR COUNSEL, AS ESTABLISHED FACT IN LIEU OF PROOF.

POINT VI

THE CHANCERY DIVISION DENIED FARRINGTON THE SAME DEGREE OF PROCEDURAL LATITUDE THAT IT WOULD AWARD TO A LITIGANT REPRESENTED BY COUNSEL, SUCH THAT REASSIGNMENT AND A CHANGE OF VENUE ARE IN ORDER.

After reviewing the record and arguments in light of the applicable legal principles, we are unpersuaded by any of these arguments and affirm. I

Plaintiff argues that the trial court abused its discretion in denying her "request" for an adjournment and contends that the court would have granted such a request if made by an attorney. We disagree.

Despite the court's unequivocal direction to her on May 9, 2011, plaintiff failed to file opposition to the motion to compel or dismiss. Therefore, plaintiff was not entitled to argue in opposition to defendants' motions. Rule 1:6-2(a) provides, in pertinent part:

The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought.

Although it appears from the record that the trial judge was inclined to permit plaintiff to present her position if she appeared at the June 6 hearing, this would have constituted an indulgence to her that was not required by the Rules of the Court. Moreover, she did not actually request an adjournment of the proceeding, but only left telephone messages with the court and Surrogate that she could not attend the afternoon session. Under the circumstances, where she did not have the right to orally argue in opposition to the motions, the court was not required to decipher her ambiguous messages to be a request for an adjournment or to delay the proceedings so she could attend. We are therefore satisfied that the court did not abuse its discretion in proceeding to decide defendants' motions on June 6, 2011.

II

Plaintiff argues the trial court erred in dismissing her August 16 complaint with prejudice by failing to follow the two-step process required by Rule 4:23-5(a). However, the motion to dismiss the complaint here was not governed by Rule 4:23-5(a), which applies to motions that are based upon a failure to comply with discovery demands made by an adversary pursuant to Rules 4:17, 4:18-1, or 4:19. See R. 4:23-5(a)(1). In contrast, the discovery obligation plaintiff failed to satisfy was memorialized in a consent order and was therefore governed by Rule 4:23-2, which provides, in pertinent part:

(b) If a party . . . fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(3) An order . . . dismissing the action or proceeding or any part thereof with or without prejudice, or rendering a judgment by default against the disobedient party[.]

Unlike Rule 4:23-5(a), which contains a two-step sanction process, see A & M Farm & Garden Ctr. v. Am. Sprinkler Mechanical, L.L.C., 423 N.J. Super. 528, 534-35 (App. Div. 2012), Rule 4:23-2(b) makes clear that when a party "fails to obey an order to provide or permit discovery," a court is permitted to "dismiss[] the action or proceeding or any part thereof with or without prejudice[.]" R. 4:23-2(b)(3).

"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). While dismissal with prejudice "is a drastic remedy," Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005), it is appropriate "in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious[,]" Abtrax, supra 139 N.J. at 514.

Applying these principles here, the trial court did not abuse its discretion in dismissing plaintiff's complaint. As the court observed, the production of the birthday card was essential to the orderly consideration and disposition of plaintiff's primary contention. She first raised the birthday card as a purported holographic will in August 2010, after the court had admitted the October 1995 will to probate. After a hearing in October 2010, she produced her expert report in early 2011. On February 14, 2011, following considerable discussion at a hearing, the trial court entered a consent order that called for plaintiff to produce the original exemplars relied upon by her expert so defendants could obtain rebuttal expert reports. After plaintiff ignored this obligation for more than one month, defendants moved to compel production. Despite being cautioned by the court in May 2011, plaintiff still failed to produce the card, filed no opposition to defendants' motions, and failed to appear when the motions were heard by the court. Although she has attempted to shift blame for the failure to produce the document to her attorney, there is nothing in the record that shows the card ever left plaintiff's control.

Based on these facts, the trial court dismissed plaintiff's complaint with prejudice. The court noted that, without justification, plaintiff had prevented defendants from addressing an issue that was "the essence of [plaintiff's] whole complaint." If her decision to violate the court's order was "not willful, it [was] as close to willful as one might find." We are satisfied the trial court's findings are "supported by adequate, substantial, and credible evidence" and will not disturb them. See Abtrax, supra, 139 N.J. at 517.

III

The trial court entered two orders that required plaintiff to pay counsel fees to defendants. The first followed her failure to comply with the consent order. The second order followed the denial of her motion for reconsideration thereafter. Plaintiff argues that the trial court erred in doing so.

Rule 4:23-2(b) explicitly states the court "shall" require the delinquent party to pay reasonable counsel fees caused by the failure to comply with an order requiring discovery in the absence of a finding that "the failure was substantially justified or that other circumstances [made] an award of expenses unjust." See also Summit Trust Co. v. Baxt, 333 N.J. Super. 439, 449 (App. Div.), certif. denied, 165 N.J. 678 (2000). The court did not make such a finding and, indeed, noted for the record the unjustifiable nature of plaintiff's failure to comply. Thus, the award of counsel fees for failure to comply with the consent order following the June 6 return date was not only authorized but required by the rule.

The trial court also awarded counsel fees to defendants for opposing plaintiff's motion for reconsideration. Plaintiff claimed to have the birthday card in her possession at the time the motion was heard. However, the record is clear that, despite the court's earlier finding, plaintiff did not cure her contumacious failure to produce the birthday card following the dismissal, in making her motion, or at any time prior to oral argument on the motion. Thus, in bringing the motion, plaintiff subjected defendants to additional, unwarranted legal expense as a result of her continuing, contumacious failure to abide by the consent order.

Because a trial court is vested with inherent power to invoke sanctions in enforcing discovery rules, Abtrax, supra, 139 N.J. at 513, it is a reasonable exercise of that power to impose sanctions commensurate with the scope of the conduct that provides the basis for the sanction. Therefore, when a sanction is properly imposed for failure to comply with an order pursuant to Rule 4:23-2, it follows that the court may also make an award of attorney's fees to parties compelled to defend against a meritless motion for reconsideration made by a delinquent party who continues to be non-compliant with the order. See Segal v. Lynch, 417 N.J. Super. 627, 647 (App. Div. 2011) (stating that "reasonable expenses incurred . . . should include expenses incurred in defending motions for reconsiderations and appeal"), rev'd on other grounds, 211 N.J. 230 (2012). Accordingly, we are satisfied that the trial court had the authority to award counsel fees to defendants for the reasonable expenses they incurred in opposing plaintiff's motion for reconsideration. Further, because the award was properly limited to the reasonable expenses so incurred, the court did not abuse its discretion in doing so.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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