NOT FOR PUBLICATION WITHOUT THE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-0175-14T1
A-1042-14T1
IN THE MATTER OF THE
ESTATE OF SELMA H. LEDERER,
Deceased.
Argued December 20, 2016 - Decided March 16, 2017
Before Judges Reisner, Koblitz and Sumners.
On appeal from the Superior Court of New
Jersey, Chancery Division, Probate Part,
Bergen County, Docket Nos. P-048-07 and P-020-
13.
Jay Joseph Friedrich argued the cause for
James Lederer, Jessica Lederer and Jeremy
Lederer, appellants in A-1042-14 and
respondents in A-0175-14 (Friedrich &
Friedrich, PA, attorneys; Mr. Friedrich, of
counsel and on the briefs).
Harry D. McEnroe argued the cause for Michelle
Lederer and Mark Lederer, respondents in A-
1042-14 and A-0175-14 (Tompkins, McGuire,
Wachenfeld & Barry, LLP, attorneys; Mr.
McEnroe, of counsel and on the briefs).
Marc J. Gross argued the cause for intervenor
Trinity Bui as guardian ad litem for minor
J.L., respondent in A-1042-14 and appellant
in A-0175-14 (Greenbaum, Rowe, Smith & Davis,
LLP, attorneys; Mr. Gross, of counsel and on
the briefs).
Gregory S. Tabakman argued the cause for
Stuart Reiser, administrator of the estate,
respondent in A-1042-14 (Shapiro, Croland,
Reiser, Apfel & Di Iorio, LLP, attorneys; Mr.
Reiser, of counsel; Mr. Tabakman, on the
brief).
PER CURIAM
These two appeals, which we have consolidated for purposes
of this opinion, concern long-running litigation over the estate
of Selma H. Lederer, including disputes over inter vivos transfers
and several wills. In A-1042-14, defendants James Lederer, Jessica
Lederer and Jeremy Lederer appeal from a September 12, 2014 order,
embodying the following provisions: granting a motion by
plaintiffs Mark and Michelle Lederer to confirm an August 11, 2014
arbitration award, declaring decedent's March 21, 1997 will as her
valid and binding last will and testament and awarding other
relief; denying defendant's cross-motion to vacate the award;
entering judgment against defendants consistent with the terms of
the award; and appointing Stuart Reiser, Esquire, as the
administrator, C.T.A. of the estate.1 In A-0175-14, James
Lederer's minor son, J.L., through his mother and guardian ad
litem Trinity Bui, appeals from a June 10, 2014 order dismissing
1
Arguably, the September 12, 2104 order was interlocutory,
however, we have determined to hear the matter and thus grant
leave to appeal.
2 A-0175-14T1
his complaint seeking to probate a copy of a purported will dated
August 26, 2000, and an amended judgment dated July 10, 2014. He
also appeals from an August 29, 2014 order denying reconsideration.
In both cases, Judge Robert P. Contillo decided all issues
thoroughly and correctly in a series of cogent written and oral
opinions, including a February 28, 2011 written opinion, a June
10, 2014 oral opinion, and a September 12, 2014 oral opinion. We
affirm substantially for the reasons he stated. Except as
addressed in this opinion, appellants' arguments are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
I
We begin by addressing the appeal in A-0175-14. The pertinent
history of the case is set forth in our prior opinion, dismissing
J.L.'s interlocutory appeal.2 In re Estate of Lederer, A-2271-12
(App. Div. April 1, 2014). Those details need not be repeated
here. Briefly, the adult parties participated in protracted
litigation concerning several of Selma's inter vivos transfers and
wills. During discovery, a document surfaced, which defendants
2
Intending no disrespect, we will refer to the parties, and the
decedent, by their first names. We use the first names the parties
used in their briefs.
3 A-0175-14T1
claimed was a copy of a handwritten will, signed by Selma and
naming J.L. as one of the beneficiaries.3
As the trial date approached, the adult parties signed an
agreement to submit the entire dispute to binding arbitration.
However, J.L. was not a party to the adults' litigation and he did
not participate in the arbitration. In one of several awards, the
arbitrator found that the August 26, 2000 document4 was not a valid
will, because it was the product of undue influence. When
plaintiffs filed a motion to confirm the arbitrator's award, J.L.
intervened in the motion to protect his interests.
As described in our prior opinion, Judge Contillo confirmed
the arbitrator's award as it applied to the adult parties only,
but he gave J.L. a choice of two remedies - either to reopen the
arbitration concerning the August 26 will, or to submit the August
26 will for probate and allow the parties to litigate the will's
validity before Judge Contillo. J.L. chose to submit the will for
probate. Plaintiffs filed objections to the will, and Judge
Contillo conducted a trial as to its validity.
3
None of the other wills involved in the litigation or the
arbitrations named J.L. as a beneficiary.
4
In the interest of brevity, we will refer to this copy of a
document as "the August 26 will," without intending to imply any
conclusion as to its validity.
4 A-0175-14T1
After hearing J.L.'s evidence, Judge Contillo dismissed his
complaint seeking to probate the August 26 will. In a lengthy and
detailed oral opinion issued on June 10, 2014, Judge Contillo
observed that the purported will, only a copy of which was
produced, appeared to be a set of handwritten instructions for the
eventual preparation of a will. He also concluded that J.L. had
not presented prima facie evidence from which the court could
possibly conclude, by clear and convincing evidence, that the
proffered document in fact represented Selma's last will and
testament.
On this appeal, J.L. raises a series of arguments directed
at the alleged unfairness of the arbitration. Those arguments are
without merit. J.L. eschewed the chance to re-open the arbitration
and, instead, he received a full and fair opportunity to litigate
the validity of the purported will in a trial before Judge
Contillo. He failed to carry his heavy burden of proof in that
trial.
Citing the doctrine of dependent relative revocation, J.L.
also contends that because the arbitrator found that Selma's
September 11, 2000 will was the product of undue influence, the
August 26, 2000 will must be considered valid. See In re Estate
of Smalley, 131 N.J. Eq. 175, 177 (Prerog. Ct. 1942) (explaining
the doctrine of dependent relative revocation). That argument is
5 A-0175-14T1
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
We affirm the orders on appeal.
II
Next, we address the appeal in A-1042-14. As previously
noted, shortly before the scheduled trial in the adults' probate
litigation, they entered into a comprehensive arbitration
agreement. Specifically, they agreed to submit "all matters
subject to this action" to binding arbitration before a retired
former Chief Justice of the Supreme Court. They agreed that the
arbitrator "has the discretion to issue the award with or without
reasons." The agreement did not require that a verbatim record
be made of the arbitration, although it permitted either party to
have a court reporter present at his or her own expense. 5 The
agreement authorized the arbitrator to "award attorney's fees and
costs to either, both, or none of the parties."
The parties agreed that the arbitrator's award "shall be
final and binding upon the parties without appeal or review except
as permitted by the applicable New Jersey Law."
The agreement specified that the arbitration would be
governed by "the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 et
5
No transcript has been provided to us, and the arbitrator's
awards confirm that no verbatim record was made.
6 A-0175-14T1
seq." As Judge Contillo recognized in his February 28, 2011
opinion, that reference appears to be a typographical error,
because N.J.S.A. 2A:24 governs collective bargaining agreements.
The correct citation is N.J.S.A. 2A:23B, governing "all agreements
to arbitrate made on or after January 1, 2003" except for
collective bargaining-related arbitration. See N.J.S.A. 2A:23B-3;
Kimm v. Blisset, L.L.C., 388 N.J. Super. 14, 28 (App. Div. 2006),
certif. denied, 189 N.J. 428 (2007). However, as Judge Contillo
noted, the relevant provisions of both statutes, concerning
vacating an award where an arbitrator exceeded his or her powers,
are essentially the same. See N.J.S.A. 2A:23B-23(a)(4); N.J.S.A.
2A:24-8(d).
After multiple arbitration sessions, the arbitrator issued a
series of awards favorable to plaintiffs, finding that James
exercised undue influence over Selma in the preparation of several
wills and in the making of several inter vivos transfers.
Ultimately, Judge Contillo confirmed all of the awards.
On this appeal, defendants present the following points of
argument:
POINT I: THE ARBITER AND COURT HAD AN
OBLIGATION TO REVIEW EACH AND EVERY
AFFIRMATIVE DEFENSE RAISED BY APPELLANTS PRIOR
TO RULING ON OR AFFIRMING ANY AWARDS.
7 A-0175-14T1
POINT II: NEITHER THE ARBITER NOR COURT HAVE
THE RIGHT TO MODIFY THE ARBITRATION AGREEMENT
WITHOUT THE CONSENT OF ALL PARTIES.
POINT III: NEITHER THE ARBITER NOR COURT HAVE
A RIGHT TO REFUSE TO CONSIDER EVIDENCE
MATERIAL TO THE CONTROVERSY SUBMITTED FOR ITS
CONSIDERATION.
POINT IV: THE ARBITER DOES NOT HAVE THE RIGHT
UNDER THE ARBITRATION STATUTE AND ARBITRATION
AGREEMENT TO ARBITRARILY AND CAPRICIOUSLY FIND
THAT ONE OR MORE OF THE DEFENDANTS IS LIABLE
WITHOUT ANY FINDINGS OF FACT OR LAW THAT THEY
UNDULY INFLUENCED THE TESTATOR AND THEIR
REJECTION OF PLAINTIFFS' CLAIMS CONSTITUTE
LIABILITY.
POINT V: THE ARBITER DOES NOT HAVE THE RIGHT
TO IMPOSE SANCTIONS ON THE DEFENDANT THAT ARE
BASED ON AN ERRONEOUS VIEW OF LAW OR ON A
CLEARLY ERRONEOUS ASSESSMENT OF THE EVIDENCE.
POINT VI: THE COURT CANNOT DIRECT A FORMAL
ACCOUNTING BY JAMES LEDERER BECAUSE THE
ARBITER MERELY DIRECTED THAT HE ASSIST THE
ADMINISTRATOR TO BE APPOINTED, WHO WAS NOT
APPOINTED AT THE TIME OF THE ORDER, AND
THEREAFTER SANCTION DEFENDANTS FOR NOT
COMPLYING AT A RATE OF $500 PER DAY.
POINT VII: THE ARBITER AND JUDGE HAVE AN
OBLIGATION TO PROTECT THE INTERESTS OF A
MINOR.
POINT VIII: THE ARBITER HAS AN OBLIGATION TO
REVIEW EACH ALLEGED GIFT AND THE FACTS
PERTAINING TO SAME PRIOR TO DETERMINING THAT
THE GIFT WAS UNDULY INFLUENCED.
POINT IX: THE COURT DOES NOT HAVE THE RIGHT
TO APPOINT AN ADMINISTRATOR CTA AND A
REPRESENTATIVE OF THE DEFENDANTS WHO
REPRESENTED ALAN DAVIDSON, ESQ. IN THE MAURICE
LEDERER LITIGATION.
8 A-0175-14T1
Several of the arguments are unreviewable, because the
parties agreed that the arbitrator need not give reasons for his
decisions, and there is no verbatim record of the arbitration.
Other arguments founder on the well-established principle that
alleged factual or legal errors in an arbitrator's decision are
not grounds to vacate an award. Tretina Printing, Inc. v.
Fitzpatrick & Assocs., 135 N.J. 349, 357-59 (1994); Minkowitz v.
Israeli, 433 N.J. Super. 111, 135-36 (App. Div. 2013). Still
other points rely on rhetorical questions rather than legal
argument. No argument or discussion is set forth with respect to
Point VII. Point IX is devoid of any citation to the Rules of
Professional Conduct or applicable case law. Except as addressed
herein, defendants' appellate contentions do not warrant further
discussion. R. 2:11-3(e)(1)(E).6
Defendants contend that the arbitrator exceeded his authority
by addressing the validity of the August 26 will, and Judge
Contillo should have vacated the arbitrator's decision concerning
that document. We disagree.
6
J.L. submitted a brief in this appeal, purportedly as a
"respondent." His brief raises essentially the same arguments
presented in A-0175-14. We reject his arguments for the same
reasons stated in section I above.
9 A-0175-14T1
Judicial review of an arbitrator's award is quite limited,
and a court may only vacate an award in the following
circumstances:
(1) the award was procured by corruption,
fraud, or other undue means;
(2) the court finds evident partiality
by an arbitrator; corruption by an arbitrator;
or misconduct by an arbitrator prejudicing the
rights of a party to the arbitration
proceeding;
(3) an arbitrator refused to postpone the
hearing upon showing of sufficient cause for
postponement, refused to consider evidence
material to the controversy, or otherwise
conducted the hearing contrary to section 15
of this act, so as to substantially prejudice
the rights of a party to the arbitration
proceeding;
(4) an arbitrator exceeded the
arbitrator's powers;
(5) there was no agreement to arbitrate,
unless the person participated in the
arbitration proceeding without raising the
objection pursuant to subsection c. of section
15 of this act not later than the beginning
of the arbitration hearing; or
(6) the arbitration was conducted without
proper notice of the initiation of an
arbitration as required in section 9 of this
act so as to substantially prejudice the
rights of a party to the arbitration
proceeding.
[N.J.S.A. 2A:23B-23 (emphasis added).]
10 A-0175-14T1
Most recently, our Supreme Court reaffirmed the authority of
an arbitrator to determine "in the first instance . . . the
scope of the parties' submissions in order to identify the issues
that the parties intended to arbitrate." Bound Brook Bd. of Educ.
v. Ciripompa, __ N.J. __, __ (2017) (slip op. at 11) (quoting
Metromedia Energy, Inc. v. Enserch Energy Servs., 409 F.3d 574,
579 (3d Cir. 2005), cert. denied, 546 U.S. 1089, 126 S. Ct. 1021,
163 L. Ed. 2d 852 (2006)). Although a reviewing court will not
"rubber stamp" the arbitrator's decision, the courts "will review
the arbitrator's interpretation of the parties' intention under a
'highly deferential' standard." Ibid.
Applying that standard here, the arbitrator did not exceed
his authority by addressing the August 26 will. As discussed in
greater detail in Judge Contillo's February 28, 2011 opinion, the
arbitrator's authority extended to "all matters subject to this
action." A fair interpretation of that phrase is that it signaled
the parties' intent to arbitrate all issues that were or could
have been raised in the pending litigation over Selma's estate.
A central issue to be decided was which will - or purported will
- governed her testamentary dispositions. Deciding the validity
of the August 26 will clearly fell within the scope of the
arbitrator's authority.
11 A-0175-14T1
Affirmed.
12 A-0175-14T1
IN THE MATTER OF THE ESTATE OF SELMA H. LEDERER(P-048-07 AND P-020-13, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED)
Combined Opinion