United States District Court, D. New Jersey
A. OUDA PETER A. OUDA, LLC On behalf of Plaintiff
L. SLIMM MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN On
behalf of Defendant Dennis P. McInerney
MICHAEL S. MIKULSKI II, PHILIP JOHN DEGNAN CONNOR WEBER &
OBERLIES, P.C. On behalf of Defendants Thomas W. Sasaki, Eric
Sasaki, and Re/Max World Class Realty
M. DALENA WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP On
behalf of O'Hara Appraisals and Martin T. O'Hara
L. HILLMAN, U.S.D.J.
matter arises from a decades' worth of litigation
regarding the Estate of Richard D. Ehrlich, who died on
September 21, 2009. One of the claims lodged by Plaintiff,
Jonathan Ehrlich, the decedent's nephew, in his original
complaint in this action was a breach of fiduciary duty claim
against Defendant Dennis P. McInerney, the temporary
administrator of the Estate. On December 13, 2017, this Court
dismissed Plaintiff's claims against McInerney, finding
that Plaintiff's claims were barred by New Jersey's
entire controversy doctrine and N.J.S.A.
pending before the Court is the motion of Plaintiff pursuant
to Fed.R.Civ.P. 60(b) to vacate the Court's dismissal of
his claims against McInerney because of evidence obtained
from McInerney's deposition as a fact witness with regard
to Plaintiff's claims against the other defendants. As to
the other defendants, Plaintiff claims that Re/Max World
Class Realty, Thomas W. Sasaki, and Eric Sasaki
(“Realtor defendants”) acted negligently in the
real estate listing of two of the decedent's properties.
Plaintiff also claims that O'Hara Appraisals and Martin
T. O'Hara (“Appraisal defendants”)
negligently prepared appraisals for the two properties. Also
pending before the Court are the motions of these defendants
for summary judgment.
has opposed Plaintiff's Rule 60(b) motion. Plaintiff has
partially opposed the Realtor defendants' motion for
summary judgment. Plaintiff has not filed an opposition to
the Appraisal defendants' summary judgment motion.
reasons expressed below, the Court will deny Plaintiff's
motion, and grant Defendants' motions.
Court restates the relevant background from the Court's
December 13, 2017 Opinion (Docket No. 31), which recounted
the June 29, 2012 decision by the New Jersey Superior Court,
Appellate Division, In re Estate of Ehrlich, 47 A.3d
12 ( N.J.Super.Ct.App.Div. 2012), certif. denied, 59
A.3d 602 (N.J. 2013), appeal dismissed, 64 A.3d 556
(N.J. 2013). Decedent was a trust and estates attorney in
Burlington County, New Jersey. Id. at 13-14. He died
on September 21, 2009, with his only next of kin being his
nephews, Todd Ehrlich and Plaintiff, and his niece Pamela
Venuto. Id. at 14. While Decedent had not had
contact with Todd or Pamela for over twenty years, he
maintained a close relationship with Plaintiff, who he had
told friends was the person to contact if he were to die and
was the person to whom he would leave his estate.
learning of Decedent's death, a search for Decedent's
will ensued. Id. Plaintiff located a copy of a
purported will in a drawer in Decedent's home.
Id. On December 17, 2009, Plaintiff filed a
complaint seeking to have the purported will admitted to
probate. Id. Todd and Pamela objected. Id.
McInerney, who had previously been named as Trustee of
Decedent's law practice, was appointed as temporary
administrator. Id. While McInerney was ordered to
inspect Decedent's home, no other document purporting to
be Decedent's will was ever located. Id.
purported will that was recovered provided a specific bequest
of $50, 000 to Pamela, a specific bequest of $75, 000 to
Todd, twenty-five percent of the residuary to pass through a
trust to a friend, and seventy-five percent of the residuary
to pass to Plaintiff. Id. On April 20, 2011, the
proffered will was admitted to probate. Id. at 13.
The court then denied a motion for reconsideration on June
20, 2011. Id. The Appellate Division then affirmed,
finding the will was properly admitted to probate.
Id. at 19. While the decision was appealed to the
New Jersey Supreme Court, Plaintiff's complaint provides
that the matter was settled by the siblings.
January 18, 2013, Judge Karen L. Suter of the Superior Court
of New Jersey, Chancery Division granted McInerney's
motion for instructions and to allow a settlement with
regard to two actions pending against the Estate arising from
Decedent's law practice: IMO Estate of Farias v.
Estate of Ehrlich and Farias v. Estate of
Ehrlich. McInerney filed the motion for instructions
believing settling the matters was in the best interest of
the Estate, as he believed the Estate could potentially be
liable for more than the settlement amount. Plaintiff opposed
the motion, arguing “more information is required
before a determination of the propriety of the settlement can
be made.” Judge Suter determined McInerney was
“acting within his powers as temporary
administrator” and thus approved the settlement. The
settlement was thereafter consummated.
15, 2011, Judge Michael J. Hogan of the Superior Court of New
Jersey, Chancery Division approved McInerney's first
intermediate account on behalf of the Estate. By a May 23,
2012 Order, Judge Suter denied Plaintiff's motion to
vacate the July 15, 2011 court order. Plaintiff appealed
the denial of his motion to vacate. In re Estate of
Ehrlich, 2013 WL 2476490. The Appellate Division
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.
Id. at *1.
July 25, 2014 decision, Judge Mary C. Jacobson of the
Superior Court of New Jersey, Chancery Division considered
exceptions to a final accounting filed for Decedent's
Estate, a motion seeking removal of McInerney as temporary
administrator and appointment of Plaintiff as executor, and
applications by McInerney and two other attorneys for fees
payable from the Estate.
course of considering the exceptions to the accounting, Judge
Jacobson considered Plaintiff's complaint that the sale
price of Decedent's home was substantially less than its
value as set forth in prior appraisals. Judge Jacobson found,
while the property had originally been appraised around $350,
000 at Decedent's death and for a couple years
thereafter, Defendant had only received offers well below the
original appraisal value. McInerney thus sought two updated
appraisals, which determined the appraisal value had dropped
to somewhere around $225, 000 to $250, 000, with necessary
repairs approximating over $107, 000. McInerney thus sought
instructions from the court as to whether he should accept an
offer of $212, 500 or make repairs to the property to try to
rent it until the market improved. After hearing
Plaintiff's opposition, Judge Suter approved and
authorized the proposed sale.
The record reveals no action taken by Mr. Ehrlich to stop the
sale after Judge Suter's ruling. Moreover, Mr. Ehrlich
has presented no evidence that would allow this court to set
aside Judge Suter's Order . . . . To allow Mr. Ehrlich to
re-litigate this issue after the property has been sold in an
effort to obtain a surcharge would be unjust and oppressive
to the Temporary Administrator. When a fiduciary has properly
applied to the probate court for advice and direction with
respect to a transaction involving the administration of the
estate and acts in accordance with the court's
instructions, it would be inequitable to allow an exceptant
who had an opportunity to be heard at the time of the
application to the court for instructions to later pursue the
same objection through an exception to the final accounting.
By that time the Temporary Administrator's actions had
been sanctioned by the court and should be given res
judicata effect. To allow otherwise by an exceptant
would create havoc in the administration of estates, leaving
none but the foolhardy willing to serve as fiduciaries. Mr.
McInerney proceeded to sell the property only after court
approval and an opportunity for Mr. Ehrlich to be heard. Mr.
Ehrlich's exception to the sale of the property must
therefore be denied.
court also addressed Plaintiff's allegation that
Defendant did not take adequate steps to locate
Decedent's will on his computer:
Even if this claim is true, Mr. Ehrlich offers no explanation
as to how this failure caused any loss to the Estate. The
writing that was admitted to probate pursuant to N.J.S.A.
3B:3-3 by Judge Hogan, who issued a Judgment to this effect
that was upheld by the Appellate Division, was a paper copy
of a will, unsigned by the decedent and any witnesses, but
which bore a notation in the handwriting of the decedent
stating, “original mailed to H. W.Van Sciver
5/20/00.” . . . Because this document was admitted to
probate, any failure to locate a draft of this document on
the decedent's computer caused no loss to the Estate or
to Mr. Ehrlich. Whether the decedent had any other draft of a
different purported will on his computer and whether that
different draft would have benefited Mr. Ehrlich is mere
speculation. Moreover, any draft of an alleged will retrieved
from the decedent's computer would lack the handwritten
notation that both the chancery court and the Appellate
Division relied upon in deciding that the decedent intended
to constitute his will.
addressing the exceptions, the state court stated
Plaintiff's “numerous allegations of duplicitous
conduct” by McInerney were “factually
unsupportable in the record before the court.” Rather,
the court found McInerney “acted appropriately in
bringing issues to the attention of the court for direction
and presenting his accountings to the court for
approval.” Later in the opinion, in addressing the
motion to remove McInerney as temporary administrator, the
court stated: “Mr. Ehrlich has not demonstrated that
there has been a flagrant dereliction of duty by the
Temporary Administrator . . . .” Judge Jacobson
ultimately approved the account in all respects.
October 30, 2015 Motion Hearing, Judge Jacobson considered a
motion by McInerney seeking an order awarding attorneys'
fees and costs to him, providing direction as to payment of
an attorneys' fee award, and seeking direction as to the
distribution of the balance of the Estate, among other
requests. Plaintiff opposed the motion, largely based on the
alleged failure of McInerney to pursue a particular asset of
the Estate - a condominium titled in Decedent's name in
the Harbour House Towers of Freeport in the Grand Bahamas.
certified he was not made aware Decedent had an interest in
property in the Bahamas, and if he had been so aware, he
would have taken action to transfer the property to the
Estate. Judge Jacobson concluded:
The Court is not convinced that Mr. McInerney, on the basis
of the record before it, was ever informed about the Bahamas
property and . . . made aware that it was something he should
investigate. Jonathan Ehrlich himself had access to the
decedent's files and documents. It is throughout the
record of this lengthy estate litigation that he had removed
documents and files prior to Mr. McInerney's appointment
as administrator. . . .
. . . .
N.J.S.A. 3B:17-8 provides that a judgment allowing an account
after due notice shall be res adjudicata as to all exceptions
which could or might have been taken to the account and shall
constitute, exonerate and discharge the fiduciary from all
claims of all interested parties, and the statute was relied
upon by the Appellate Division in the earlier estate
litigation in refusing to allow Mr. Ehrlich to raise issues
as to Mr. McInerney's performance that could have been
raised in the first accounting but were not . . . .
Since Mr. Ehrlich was aware of the claim that the decedent
owned a condominium in the Bahamas prior to the first and
second accountings and failed to file an exception in this
regard to either accounting the Court finds that the
judgments approving both accountings constitute res
adjudicata and eliminate any liability on the part of Mr.
McInerney with regard to the Bahamas property.
in addressing McInerney's fee request, the court noted
Plaintiff “claim[ed] that the Estate ha[d] been
mishandled in many respects, ” but the ...