June 11, 2013
IN THE MATTER OF THE ESTATE OF RICHARD D. EHRLICH, Deceased.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. 2009-2542.
Ronald P. Colicchio argued the cause for appellant Jonathan Ehrlich (Saul Ewing, LLP, attorneys; Mr. Colicchio, on the brief).
Dennis P. McInerney argued the cause for respondent Estate of Richard D. Ehrlich.
Before Judges Parrillo and Maven.
Appellant Jonathan Ehrlich appeals from the denial of his Rule 4:50-1 motion to vacate an order approving the interim accounting by respondent Dennis P. McInerney, the temporary administrator of the Estate of Richard D. Ehrlich. We affirm.
The facts of the underlying Will contest have been detailed in our prior published opinion, In re Estate of Ehrlich, 427 N.J.Super. 64 (App. Div. 2012), certif. denied, 213 N.J. 46 (2013), appeal dismissed, ___ N.J. ___ (2013), in which we affirmed the order of the General Equity Part admitting into probate the proffered Will of decedent Richard P. Ehrlich. Suffice it to say, the Will named appellant the primary beneficiary of his deceased uncle's estate.
Upon admitting the Will to probate on April 20, 2011, the General Equity judge named respondent temporary administrator of the estate. On May 31, 2011, respondent filed a verified complaint seeking approval of his "First and Final Account" with the Burlington County Surrogate's Court. An order to show cause was filed, setting a return date of June 17, 2011 for interested parties to file objections to the accounting. Appellant filed no exceptions to the accounting. In fact, no interested party objected to the accounting. After a hearing at which appellant was represented by counsel, who confirmed there were no objections, the judge entered an order on July 15, 2011 approving "the Temporary Administrator's First Intermediate Account" and his requested fees. The judge did not discharge the temporary administrator and directed instead the continued administration of the Estate.
Thereafter, on December 28, 2011, appellant filed a motion to remove the temporary administrator, and sought the turnover of all papers and files as well as an audit and investigation of the administration of the estate. The motion was denied. Appellant moved for reconsideration, which relief was also denied. Appellant did not appeal either ruling.
Instead, on April 4, 2012, appellant moved to vacate the July 15, 2011 order approving the First Accounting of the Temporary Administrator, chiefly on the ground that the accounting failed to include certain assets of the Estate. To that end, the motion also sought the following collateral relief:
2. Allowing the inspection by [appellant] of all the records and documents used by the Temporary Administrator as a basis for his First Accounting;
3. Requiring the Temporary Administrator to account for 9000 shares of UGI stock and the dividends from the UGI stock after July 1, 2010 and the dividends from Center Point Energy after March 10, 2010 and the dividends from Banco Santander after November 12, 2010.
4. Requiring the Temporary Administrator to provide all photographs of the personal property sold by Alderfer.
In his opposing certification, respondent emphasized that appellant had neither objected to the accounting nor appealed the July 15, 2011 order approving the accounting. Respondent further explained that certain assets were added to the Estate after the closing date of the initial accounting. Specifically, respondent was unaware of the UGI Corporation stock prior to the filing because no stock certificates were found at decedent's home or office. Since then, however, respondent has replaced the certificates, sold the stock, and deposited the net proceeds and recently released dividends into the Estate account. Respondent was not able to sell the Center Point Energy stock initially because replacement certificates could not be issued. After appellant forwarded the original stock certificates to respondent, a stock sale was in fact initiated. Respondent has represented that he will deposit the proceeds of the sale and released dividends into the Estate account when they become available. And lastly, the Banco Santander stock has since been sold and the proceeds and dividends deposited into the Estate account. Respondent has also emphasized that all this activity "took place since the filing of [the] First Intermediate Accounting and will be part of a Second Intermediate Accounting or Final Accounting as directed by the Court."
Appellant's Rule 4:50-1 motion was heard on May 4, 2012 and denied by the General Equity judge, who reasoned:
The motion to vacate the first interim accounting is denied. I mean, I don't find a basis under Rule 4:50 to open that up. [I]t was not objected to. The Court found that.
It's an interim accounting, and there will be a final accounting. So, you're not dealing with something that was final. And, it's acknowledged by Mr. McInerney that there are issues that will be dealt with in the final accounting or perhaps a second interim accounting, whatever it turns out that we need. But all of these issues, you know, we've heard previously and applications to have Mr. McInerney removed from his position and those have been denied. And, there just simply was no objection to it. But, it's an interim accounting, and there's no basis under Rule 4:50 on this record to open that up, so the motion's denied.
On appeal, appellant raises the following issues:
I. FAILURE TO SET ASIDE THE JUDGMENT ALLOWING ACCOUNT AMOUNTS TO AN ABUSE OF DISCRETION.
II. AN ACCOUNTING WHICH FAILS TO ADEQUATELY ACCOUNT FOR THE ASSETS OF THE ESTATE IS NOT A FINAL ACCOUNTING AND THEREFORE REMAINS SUBJECT TO REVIEW.
III.EQUITY DICTATES THAT THE ACCOUNTING REMAIN OPEN TO ALLOW JONATHAN EHRLICH THE ABILITY TO REVIEW THE UNDERLYING DOCUMENTATION UTILIZED IN PREPARING THE ACCOUNTING.
We deem these issues without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons stated by Judge Suter in her oral opinion of May 4, 2012. We add only the following comments.
N.J.S.A. 3B:17-8 provides that a judgment allowing an account shall be "res adjudicata" as to all parties who received notice and
as to all exceptions which could or might have been taken to the account, and shall constitute an approval of the correctness and propriety of the account . . . and the legality and propriety of other matters and also shall exonerate and discharge the fiduciary from all claims of all interested parties and of those in privity with or represented by interested parties. . . .
"Those parties who actually raise and litigate an issue in an accounting proceeding are bound by the judgment entered thereon." In re Estate of Yablick, 218 N.J.Super. 91, 100 (App. Div. 1987); see also In re Estate of Skvir, 170 N.J.Super. 559, 562 (App. Div. 1979). "The rule of finality expressed in the statute applies as well to judgments approving intermediate accounts." Yablick, supra, 218 N.J.Super. at 100; Van Buren v. Plainfield Trust Co., 120 N.J. Eq. 244, 246-47 (Ch. 1941).
The present case provides no basis for disturbing the July 15, 2011 order approving respondent's intermediate accounting. Appellant, by his own admission, knew the accounting to be incomplete upon his receipt of the document yet neither filed any exceptions nor voiced any objection to the accounting at the hearing on its approval. Moreover, all acknowledged that the accounting was interim in nature and that the final accounting would include the assets belatedly brought to the administrator's attention by appellant. Under the circumstances the matter involves neither "newly" discovered evidence Rule 4:50-1(b) nor exceptional circumstances Rule 4:50-1(f) to warrant the exceptional remedy of a vacatur of the July 15 2011 order of the General Equity Part approving respondent's intermediate accounting.