NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4161-15T3
IN THE MATTER OF THE ESTATE
OF JAMES E. MELLODGE, DECEASED.
_________________________________________________
Argued September 19, 2017 – Decided September 26, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Chancery Division, Probate Part,
Hunterdon County, Docket No. 047164.
Ronald P. Colicchio argued the cause for
appellants Joyce Sealtiel and Saul Ewing, LLP
(Saul Ewing, LLP, attorneys; Russell J.
Fishkind and Mr. Colicchio, on the brief).
Paul W. Norris argued the cause for respondent
Joan Bozan (Stark & Stark, attorneys; Mr.
Norris, on the brief).
PER CURIAM
James E. Mellodge died in 2013. He disposed of his property
by way of a last will and testament and through the creation of
certain bank accounts payable on death (POD accounts). His youngest
surviving child, Joyce Sealtiel, qualified as executrix of the
estate; she was also a beneficiary of a few POD accounts.1 The
last will and testament made specific monetary requests to one
daughter and one son, while the other four children, including
Joyce, were bequeathed equal shares of the residuary estate.
In an earlier probate action involving this estate, Joan
Bozan,2 the decedent's oldest daughter, asserted that undue
influence was the cause of decedent's designation of Joyce, the
youngest daughter, as a beneficiary of POD accounts totaling
approximately $139,000. Joan's complaint also alleged that Joyce
had failed to account for $800,000 in assets – a claim soon
abandoned. After a two-day trial, the judge rejected Joan's claim
that any POD account was the product of undue influence.
Joyce then filed a verified complaint. As is the practice,
R. 4:87-1(a), the surrogate entered an order requiring, on the
return date, that any interested parties show cause why Joyce's
final accounting should not be approved and why the estate should
not bear certain fees incurred in the prior undue-influence suit.
On the return date, the judge heard Joyce's testimony as well as
the testimony of the estate's prior attorney. Requiring further
1
Decedent's other children were beneficiaries of other POD
accounts.
2
Two other siblings – James Mellodge and Judy Newman – were also
plaintiffs but withdrew from the matter soon after its
commencement.
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amplification, the judge later accepted additional submissions and
documents from the parties before rendering his March 28, 2016
written decision.
In relying on what was provided in response to the order to
show cause, as well as his own familiarity with the proceedings
as a result of presiding over the undue-influence trial, the judge
determined that the counsel-fee requests of Saul Ewing, a law firm
which represented both Joyce and the estate, and Stark & Stark,
which represented Joan, were "breathtakingly excessive" due to
their "scorched-earth" approach; the judge held that if permitted,
a full award of their fees – both firms sought awards of
approximately $200,000 each, and the probate assets totaled
$650,000 – "would swallow more than half of the probate estate."
The judge found that Saul Ewing, in its role as the estate's
litigation counsel, was entitled to a $25,000 fee and, in its role
as Joyce's counsel in defending her right to benefit from the POD
accounts, was entitled to a $40,000 fee. And, because the estate
had already paid Saul Ewing slightly in excess of $200,000, the
judge found Saul Ewing obligated to reimburse the estate; Joyce
was also obligated to return funds to the estate, insofar as Saul
Ewing had been paid from the estate for fees due to Saul Ewing
from her individually. The April 21, 2016 judgment disposed of all
other issues concerning the accounting and the fees sought.
3 A-4161-15T3
Joyce and Saul Ewing appeal, arguing:
I. THE COURT ABUSED ITS DISCRETION IN HOLDING
A FORMAL TRIAL ON THE RETURN DATE OF THE ORDER
TO SHOW CAUSE WITHOUT PROVIDING PROPER NOTICE
TO THE PARTIES.
II. THE COURT ABUSED ITS DISCRETION IN
LIMITING THE AWARD OF COUNSEL FEES INCURRED
BY THE ESTATE IN THE UNDERLYING LITIGATION AND
ACCOUNTING ACTION TO $25,000.
III. THE COURT ABUSED ITS DISCRETION IN
SEEKING TO BIND THE EXECUTRIX TO REIMBURSE THE
ESTATE FOR ANY ADDITIONAL FEES PROPERLY
AWARDED TO SAUL EWING AFTER APPEAL.
IV. THE COURT ABUSED ITS DISCRETION IN
GRANTING EXCEPTIONS TO THE EXECUTRIX'S ACCOUNT
FOR WORK SHE ACTUALLY PERFORMED ON BEHALF OF
THE ESTATE.
We find insufficient merit in Points I, II and IV to warrant
further discussion in a written opinion, R. 2:11-3(e)(1)(E), and
we affirm the disposition of the counsel-fee requests
substantially for the reasons set forth by Judge William M.
D'Annunzio in his thorough and well-reasoned written decision. The
judge was imbued with considerable discretion in ascertaining the
appropriate fee awards. The written decision reveals that the
judge thoroughly assessed the nature of the claims and the parties'
"scorched-earth" efforts in seeking vindication of their
positions; the experienced judge then employed his considerable
discretion in fixing a reasonable fee in these circumstances. We
agree with the judge that this case presented no particular
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difficulties other than those generated by an "antagonism" between
Joan and Joyce that ventured well "beyond sibling rivalry." Joyce
and Saul Ewing have presented no principled reason for either
second-guessing the experienced trial judge's view of the matter
or his determination of what constituted a reasonable fee in such
a case.
We add only a few brief comments about Point I. Joyce and
Saul Ewing argue they were deprived of due process because the
judge elicited testimony on the return date despite a contrary
direction contained in the order to show cause. That is, the order
to show cause stated that testimony would not be taken on the
return date unless the parties were otherwise advised three days
before the return date. Because they were not so notified, Joyce
and Saul Ewing claim surprise and prejudice in what occurred on
the return date. We reject this because Joyce and Saul Ewing were
not prejudiced. Even now they have not shown how their causes were
hampered or limited because of the manner in which the case
proceeded. Indeed, the issues on appeal concern counsel fees, and
the judge did not permit testimony in that regard – let alone on
the return date – deciding instead to consider the fee dispute by
examining the certifications that had been submitted and his
familiarity and understanding of the case – a sound approach.
Moreover, the record was not closed on the return date, and the
5 A-4161-15T3
parties were given the opportunity to provide additional
submissions prior to the judge's disposition of the pending issues.
Finally, we have no reason to reach Point III because it
contains Joyce and Saul Ewing's argument about a portion of the
judgment – a direction that if Saul Ewing, "as the result of an
appeal, is not required to fully reimburse the estate, . . . then
Joyce . . . is surcharged in the amount due to the estate" – which
has not been triggered here.
Affirmed.
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