IN THE MATTER OF THE ESTATE OF JOHN F. PIAZZA (P-000450-17, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2853-16T2

IN THE MATTER OF THE ESTATE
OF JOHN F. PIAZZA, Deceased.
______________________________________

Argued May 16, 2018 – Decided September 13, 2018

Before Judges Koblitz and Suter.

On appeal from Superior Court of New Jersey, Chancery
Division, Probate Part, Sussex County, Docket No.
P-000450-17.

Ian J. Hirsch argued the cause for appellant Barbara
Piazza.

Frederick C. Biehl, III, argued the cause for respondents
Debra Shaefer and Cynthia L. Schirmer (Soriano, Henkel,
Biehl & Matthews, PC, attorneys; Frederick C. Biehl, III,
on the brief).

PER CURIAM

Barbara Piazza appeals from the February 10, 2017 order that denied her

request to amend the probate of John F. Piazza's estate by admitting a codicil. The
codicil purported to disinherit one of John F. Piazza's three children. We affirm the

February 10, 2017 order.

John F. Piazza (decedent) and his wife Elly Piazza had three children: Barbara

Piazza, John H. Piazza, and Debra Elly Shaefer.1 In February 1992, decedent and

his wife prepared joint and reciprocal wills. Paragraph three of decedent's 1992 will

provided:

If my wife E[lly] shall fail to survive me . . . I direct that
all the rest residue and remainder of my estate be divided
into as many shares as there are children of my wife E[lly]
and me, surviving me, and I give, bequeath and devise one
such equal share to each of my said surviving children.

Paragraph six allowed the executrix "the [p]ower and authority to sell any real

property I may own at the time of my death." If his wife predeceased him, decedent

appointed Barbara as the executrix.

Barbara claims that on June 15, 2007, decedent and his wife executed codicils

to their 1992 wills. The purported codicil provided:

It is my wish to keep my entire Will in place but I hereby
change the [third] paragraph as follows: In the event my
wife E[lly] shall fail to survive me, or if we shall die in a
common accident or disaster, or under any other
circumstances making it impossible to determine that she
did in fact survive me, then it shall be assumed that I did
survive my wife Elly, and in such event I direct that my
1
We refer to the decedent's children by their first names because the parties used or
had the same surname at relevant times. Our use of first names is not intended to be
disrespectful to the parties.
2 A-2853-16T2
 entire residuary estate be divided between my two
surviving children, John H. Piazza and Barbara L. Piazza-
Zingaropoli.

In Paragraph [four] the grandchildren referred to are those
who are the natural born children of either John H. Piazza
or Barbara L. Piazza-Zingaropoli.

The rest of my will dated February 11, 1992 shall remain
the same.

Barbara also alleges that decedent and his wife executed a letter dated June 15, 2007,

to Debra Shaefer that explained their reason for disinheriting her. The letter

provided as follows:

Me and Mommy have tried getting in touch with you now
for the past couple of years but you never get back to us.
We really don't understand what it is we have done to you
that you just refuse to keep in touch with us or visit with
us.

Since you continue to stay away and don't want to be part
of this family mommy and I have decided to disinherit
you. We hope one day you will come back to us but you
have abandoned us for more than [thirty] years.

With this letter is a copy of our wills and our change to our
will.

Hope you are well.

Mom and Dad.

Elly Piazza passed away in 2008. Decedent passed away on December 20,

2012.

3 A-2853-16T2
 Barbara claims that after her father's death, she made costly repairs and

improvements to decedent's property in Hopatcong, New Jersey. No documentary

evidence was submitted as proof of the repairs. Barbara claims she paid John H.

$38,000 for his portion of that property. Barbara and John H. conveyed title of

decedent's property in Brooklyn, New York to themselves as "sole heirs." They then

transferred the Brooklyn property to an unrelated corporation for over $900,000,

which they divided evenly after certain unspecified debts of decedent were paid.

Two and one half years after decedent's death, in May 2015, Barbara probated

decedent's estate in Sussex County, New Jersey.2 She presented decedent's 1992

will, without the June 2007 codicil, even though she had a copy of the codicil.3 In

her application for probate, Barbara listed decedent's next of kin as herself and John

H., and omitted any reference to Debra. Barbara was appointed executrix of

decedent's estate in letters testamentary dated May 22, 2015.

In August 2015, Debra's court-appointed guardian,4 Cynthia L. Schirmer, an

attorney in North Carolina, filed a complaint in the Chancery Division against

2
Barbara does not dispute that decedent died in New York while a resident of that
State.
3
Barbara claimed to have possession of the original codicil during the trial.
4
Debra's guardian testified that Debra was deemed incompetent in North Carolina
in 2010.

4 A-2853-16T2
Barbara and John H., seeking to partition the Hopatcong property three ways and for

an accounting of all of decedent's property, assets and money. See Schirmer v.

Piazza, No. SSX-C-17-15 (Chancery case). The complaint alleged negligence in the

manner that Barbara and John H. managed the property and sought compensatory

damages and attorney's fees.5

Following a bench trial in the Chancery case, the court granted judgment to

Debra. It found that Barbara was not truthful in her probate petition by not

identifying Debra as next of kin, and that when she probated the 1992 will, Barbara

had the 2007 codicil but did not submit it for probate. The court found that it was

"way too late to submit a challenge to this, to the probate." With respect to the 1992

will, the court stated that "I’m not sure it could be a challenge in any event, since

[plaintiff], herself, was the one that introduced the will."

The trial court issued an order of final judgment on September 2, 2016. The

court's order required the sale of the Hopatcong property and the equal division of

the proceeds between the three children based on the 1992 will. The court ordered

that two-thirds of the proceeds (representing Barbara and John H.'s portions) be

placed in escrow until completion of the New York litigation, and then used to satisfy

5
The guardian also filed a lawsuit in New York seeking to vacate the deeds to the
New York property, to partition them and for a judgment based on fraud and
conversion. That complaint asked for a constructive trust and an accounting.
5 A-2853-16T2
any amount due to Debra from that litigation. Barbara did not appeal the trial court's

September 2, 2016 order of final judgment.

On September 30, 2016, Barbara filed an order to show cause and verified

complaint seeking to amend probate of decedent's estate to include the 2007 codicil

and for a trial to determine its validity. IMO the Estate of John F. Piazza, No. SSX-

P-450-17 (Probate action). She sought relief under Rule 4:50-1(a), (b), and (f) from

the September 2, 2016 judgment, alleging in her verified complaint that she did not

have the codicil or letter when she probated the will. She claimed she discovered

them prior to the bench trial but that the trial court would not allow the codicil into

evidence. Debra opposed the application.

On the February 10, 2017 return date, the court denied the order to show

cause, finding it was "a collateral attack on a judgment of the court, a final judgment.

There was . . . no appeal taken here and the matter is filed in violation of the rules."

The court noted the previous matter was "a separate docket number, a separate

action." The court additionally stated that Barbara's arguments would not meet the

criteria for relief under any Rule 4:50-1 subpart. Barbara appealed the February 10,

2017 order.

On appeal, Barbara claims the trial court erred by not amending the probate

of decedent's estate to include the 2007 codicil because the codicil reflected

6 A-2853-16T2
decedent's intent. Also, she argues the court should have relied on Rule 4:50-1 to

order admission of the codicil. We find no merit in these arguments.

Because the trial court's decision was based entirely on the application of a

legal standard to undisputed facts, our standard of review is de novo. Nicholas v.

Mynster, 213 N.J. 463, 478 (2013). We do not owe any deference to the trial court's

legal interpretation or application of a legal standard to undisputed facts. Zabilowicz

v. Kelsey, 200 N.J. 507, 512-513 (2009).

We do not agree that the trial court was required to order the probate of

decedent's estate based on the 2007 codicil. Barbara is appealing the February 10,

2017 order that denied her request to amend what was probated; she did not appeal

the September 2, 2016 judgment that required sale of the Hopatcong property and

apportionment of its proceeds among the three children. In the Chancery case, the

judge found it was too late for Barbara to probate the 2007 codicil. Under Rule 4:85-

1, Barbara had six months to challenge probate of the will. Her letters testamentary

were issued May 22, 2015, giving her six months from then. She did not ask to

probate the codicil within that timeframe. We agree that it was too late to rely on

the 2007 codicil, particularly when she probated the 1992 will and omitted reference

to her sister.

Barbara's subsequent attempt to amend what was probated was a collateral

attack on the September 2, 2016 judgment because she was seeking through her

7 A-2853-16T2
application to avoid the September 2, 2016 judgment entered in the Chancery case.

"The doctrine of collateral estoppel . . . bars [re-litigation] of any issue actually

determined in a prior action generally between the same parties and their privies

involving a different claim or cause of action." Selective Ins. Co. v. McAllister, 327

N.J. Super. 168, 173 (App. Div. 2000) (quoting Figueroa v. Hartford Ins. Co., 241

N.J. Super. 578, 584 (App. Div. 1990)). For the collateral estoppel doctrine to apply,

the party asserting the bar must show that: (1) the issue to
be precluded is identical to the issue decided in the prior
proceeding; (2) the issue was actually litigated in the prior
proceeding; (3) the court in the prior proceeding issued a
final judgment on the merits; (4) the determination of the
issue was essential to the prior judgment; and (5) the party
against whom the doctrine is asserted was a party to or in
privity with a party to the earlier proceeding.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)
(quoting In re Estate of Dawson, 136 N.J. 1, 20-21
(1994)).]

The codicil was the same in both proceedings. Barbara litigated the codicil

issue in the prior proceeding because she wanted to preclude Debra from having an

interest in the Hopatcong property by introducing the codicil in that case. Rejection

of the codicil was essential to the September 2, 2016 judgment because if the

document were accepted as a codicil, Debra would not inherit under the will.

Barbara was a party in both proceedings.

8 A-2853-16T2
 Applying the doctrine here avoids repetitious litigation. Barbara had an

adequate opportunity to address the codicil in the first action.

We agree with the trial court that Rule 4:50-1 provided no basis for relief.

There was no newly discovered evidence. Barbara alleged that she probated the will

by mistake, but the Chancery court found she was not truthful on that application by

not disclosing Debra as next of kin. There was no allegation by Barbara that she

was defrauded; the September 2, 2016 judgment is not void because it was not

appealed. She also did not present the codicil within six months, even though she

had a copy. On these facts, equity did not require relief under Rule 4:50-1(f).

Barbara cites In re Estate of Sapery, 28 N.J. 599 (1959) to support her claim.

The issue there was whether a codicil that nominated an executor was entitled to

probate when the underlying will itself could not be found. The court held that "a

duly attested codicil is entitled to probate, even though it does no more than nominate

an executor of the testator's estate." Id. at 609. That was not the situation here.

Barbara had both the will and a copy of the codicil when she chose to probate the

will without the codicil. She then belatedly tried to introduce the codicil in the

Chancery case, and when she was not successful, tried to avoid the resulting

judgment by trying to admit the codicil to probate.

9 A-2853-16T2
 Given our application of collateral estoppel, we have no need to reach the

issue of whether the codicil satisfied the requirements for probate under either New

Jersey or New York law.

Affirmed.

10 A-2853-16T2