IN THE MATTER OF THE ESTATE OF NICHOLAS BALASSONE (298230, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0399-20
IN THE MATTER OF THE
ESTATE OF NICHOLAS
BALASSONE, DECEASED.
_________________________
Submitted May 17, 2021 – Decided June 4, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
298230.
Byrnes, O'Hern & Heugle, LLC attorneys for appellants
(Sean F. Byrnes and Tyler A. Diekhaus, on the briefs).
Robert J. Pompliano, respondent pro se.
PER CURIAM
Plaintiffs Arthur Balassone and David Smith appeal from an August 28,
2020 order denying their request for counsel fees. Arthur Balassone is a direct
beneficiary, and David Smith is the husband of a direct beneficiary under the
will governing the Estate of Nicholas Balassone (Estate). 1 Plaintiffs sued the
executor of the Estate, Robert Pompliano 2 (Pompliano or Executor), because
they were dissatisfied with his handling of the Estate. Eventually, plaintiffs
obtained a court order removing Pompliano as the Estate's Executor. After the
Executor's removal, plaintiffs petitioned the probate court for attorneys' fees
associated with their motions for an Estate accounting and removal of the
Executor. The probate judge denied the fee request, finding no authority to
award fees absent a will contest or professional negligence action. We affirm.
Nicholas Balassone (decedent) died at the age of 106 on November 25,
2008. A few months before his death, Pompliano assisted in the preparation and
execution of a codicil to decedent's will signed in 1985. The codicil appointed
Pompliano as Executor of decedent's Estate and included Pompliano as a named
beneficiary of the Estate.
In accordance with the codicil, the Executor was "to liquidate [decedent's]
entire [E]state as soon after [his] demise as possible." As of his date of death,
1
There are additional beneficiaries of the Estate, but those beneficiaries are not
party to this appeal.
2
Pompliano is decedent's grandnephew and an attorney licensed to practice law
in the State of New Jersey.
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decedent owned stock, real property, and bank accounts. The Estate's primary
asset was a house located in Weehawken.
In April 2011, the Executor signed a contract to sell the house to a
purchaser for $540,000. However, the contract purchaser breached the
agreement, resulting in litigation. The litigation ultimately resolved, and the
Estate received a $30,000 settlement as a result. However, the litigation delayed
resolution of the Estate and distribution of the Estate's assets. 3
In 2011, Arthur Balassone hired an attorney "to determine the status of
the Estate." On April 1, 2011, Arthur Balassone filed a complaint seeking to
"compel an inventory, settlement[,] and distribution of the [E]state." In the
complaint, Arthur Balassone claimed the Executor unduly delayed
administration of the Estate. Two days later, a judge entered an order
compelling the Executor to produce a formal accounting of the Estate. The
Executor represented he would provide an accounting by January 23, 2012, but
he failed to do so.
3
On June 7, 2013, the Executor sold the house to another purchaser for
$525,000. With the $30,000 settlement from the litigation with the prior
contract purchaser, the Estate received a total of $555,000 from the sale of the
house.
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Another beneficiary, Joyce Lanzillo, separately sued the Executor
regarding his handling of the Estate. On December 18, 2012, a different judge
ordered the Executor to submit a formal Estate accounting. Again, the Executor
failed to do so.
In July 2015, plaintiffs filed suit seeking "to remove the [E]xecutor and
compel an inventory, settlement[,] and distribution of the [E]state." In a
September 17, 2015 order, another judge compelled the Executor to effectuate
final distribution of the Estate's assets within thirty days. On November 2, 2015,
the Executor provided an Estate accounting but did not distribute the Estate's
assets under the September 17, 2015 order.
In January 2016, the probate judge conducted a testimonial hearing
concerning finalization of the Estate. As a result of that hearing, in a January
19, 2016 order, the judge directed the Executor to settle the Estate within thirty
days, issue a release, and "refund[] bonds and checks" to all beneficiaries. The
Executor failed to comply with this order.
In a June 17, 2016 order, the probate judge compelled the Executor to
provide a final Estate accounting by July 15, 2016. Again, the Executor did not
comply with the judge's order.
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In a January 20, 2017 order, the judge removed Pompliano as the Estate's
Executor and appointed Antoinette Basile as the contingent Executrix in
accordance with decedent's will. In the order, the judge noted, "In removing
[the Executor], the [c]court ma[de] no finding as to cause [for the removal of
the Executor] at this time . . . ."
On May 1, 2017, Pompliano sent a check in the amount of $102,736.44 to
the Executrix. However, he did not simultaneously forward the Estate's records.
In June 2017, Pompliano delivered some of the Estate files to the Executrix.
On May 19, 2017, plaintiffs filed a motion to enforce litigant's rights
against Pompliano. In an August 22, 2017 order, the judge compelled
Pompliano to "make the entire Estate file, with detailed index, available for
direct pickup by the Executrix . . . within seven days . . . ." The order also
awarded plaintiffs $3,301.80 in attorneys' fees.
In May 2020, plaintiffs moved for attorneys' fees against Pompliano,
citing his delay in administering the Estate as necessitating their filing of various
motions related to the Estate. Plaintiffs sought to recoup approximately $49,000
in attorneys' fees based on the Executor's lack of action and missteps resulting
in financial harm to the Estate. Pompliano opposed the motion because
plaintiffs' action was neither a will contest nor a legal malpractice lawsuit that
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could entitle plaintiffs to a fee award. Pompliano also explained plaintiffs
suffered no damages because any costs associated with delays in the
administration of the Estate were offset by the increased value of decedent's
stocks, the payment of dividends from those stocks, and the $30,000 litigation
settlement related to the sale of decedent's home.
On August 28, 2020, the probate judge denied plaintiffs' motion for
attorneys' fees. In a written statement of reasons, the judge concluded plaintiffs
failed to demonstrate entitlement to attorneys' fees because there was no will
contest or malpractice claim, just "dissatisfaction . . . with the speed with which
[the Executor] proceeded in his administration of the [E]state . . . ." The judge
held plaintiffs' "litigation . . . would not fall within any of the recognized
exceptions to shift the responsibilities of paying attorney fees."
On appeal, plaintiffs argue the probate judge abused his discretion in
denying plaintiffs' application for attorneys' fees following their success in
removing Pompliano as Executor of decedent's Estate. We disagree.
When authorized, "fee determinations by trial courts will be disturbed
only on the rarest of occasions, and then only because of a clear abuse of
discretion." Packard-Bamberger & Co., Inc., v. Collier, 167 N.J. 427, 444-45
(2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The award of
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counsel fees is done at the discretion of the trial court and is accorded substantial
deference. See In re Probate of Alleged Will of Hughes, 244 N.J. Super. 322,
328 (App. Div. 1990).
"New Jersey follows the American Rule, which requires that parties bear
their own counsel fees except in the few situations specifically permitted by
statute or by our Supreme Court." In re Farnkopf, 363 N.J. Super. 382, 395
(App. Div. 2003) (citing In re Niles, 176 N.J. 282, 293 (2003)). Litigants bear
their own attorneys' fees unless otherwise provided by court rule, statute, or
contract. Niles, 176 N.J. at 303-04 (LaVecchia, J., dissenting).
Under our court rules, probate actions allow for an award of counsel fees
"if probate is refused" or "[i]f probate is granted, and it shall appear that the
contestant had reasonable cause for contesting the validity of the will or codicil
. . . . " R. 4:42-9(a)(3). However, Rule 4:42-9(a)(3) is inapplicable here because
the matter did not involve the refusal of an action for probate or a challenge to
the "validity of the will or codicil." Plaintiffs never challenged the probating of
decedent's will or codicil. To the contrary, plaintiffs filed actions to ensure
decedent's will and codicil were probated and the Estate finalized so they would
receive their share of the inheritance.
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Unable to cite any court rule or statute in support of their claim for
attorneys' fees, plaintiffs argue "the [c]ourt failed to give full consideration to
the import and reasoning of the Court in Packard-Bamberger" in denying
attorneys' fees. Plaintiffs assert the Executor's mediocre job in administering
the Estate, and his eventual removal as the Estate's Executor, justified an award
of attorneys' fees under Packard-Bamberger. However, plaintiffs' reliance on
Packard-Bamberger is misplaced.
The Packard-Bamberger case is inapposite and readily distinguishable
from the facts here. That case involved the sale of a corporation after the death
of its founder. 167 N.J. at 433. The plaintiffs sued a former corporate director,
who also served as legal counsel to the corporation, alleging he breached his
fiduciary duty as counsel to the corporation by, among other things, failing to
disclose a third-party's offer to purchase the corporation. Id. at 434. In Packard-
Bamberger, unlike this case, there was a clear attorney-client relationship among
the plaintiff corporation, the plaintiff shareholders, and the defendant attorney.
It was the attorney-client relationship and the defendant attorney's misconduct
and breach of that relationship, as asserted in the plaintiffs' legal malpractice
claim, that entitled the plaintiffs to an award of attorneys' fees in Packard-
Bamberger. Id. at 443.
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Here, Pompliano never had an attorney-client relationship with plaintiffs.
He became the Estate's Executor when decedent named him as such in the
codicil to decedent's will. Thus, plaintiffs' reliance on Packard-Bamberger in
support of an award of attorneys' fees is unavailing.
Even assuming there had been an attorney-client relationship between
plaintiffs and the Executor, plaintiffs would still be unable to recover attorneys'
fees. Plaintiffs concede they never asserted a legal malpractice claim against
the Executor. Nor did plaintiffs demonstrate any intentional misconduct on the
part of the Executor. The Executor did not steal funds, deal in bad faith, or
breach any fiduciary duty. Thus, the fee shifting provisions available in a legal
malpractice action are non-existent here.
Because Rule 4:42-9(a)(3) was inapplicable and plaintiffs never asserted
a legal malpractice claim against the Executor, the judge did not abuse his
discretion in denying plaintiffs' motion for attorneys' fees.
Affirmed.
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