IN THE MATTER OF THE ESTATE OF PAULINE DONNER DEBRA MORRISON, ETC. VS. CHRISTOPHER DONNER (P-2008-0233, BURLINGTON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2279-16T1
IN THE MATTER OF THE ESTATE
OF PAULINE DONNER, deceased.
_____________________________
DEBRA MORRISON, Individually
And as Executor of the Estate
Of Pauline Donner and DEBCRIS
WAREHOUSING, INC.,
Third-Party Plaintiffs-
Respondents,
v.
CHRISTOPHER DONNER, NETWORK
RELOCATION SERVICES, INC. AND
CHRIS DONNER, LLC,
Third-Party Defendants-
Appellants.
_______________________________
LORI M. MCNEELY, ESQUIRE, as
Guardian ad Litem for Jamie
Morrison, Jessica Morrison,
Katherine Donner, and George
Thomas Donner,
Third-Party Plaintiff-
Respondent.
_________________________________
Argued April 12, 2018 – Decided June 21, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket
No. P-2008-0233.
Kit Applegate argued the cause for appellant
Christopher Donner.
Thomas S. Harty argued the cause for
respondent Estate of Pauline Donner (The
Kourlesis Law Firm, attorneys; Suzanne M.
Kourlesis, on the brief).
Michael S. Rothmel, attorney for respondent
Debra Morrison.
PER CURIAM
Appellant Christopher Donner appeals from the July 29, 2016
Chancery Division order granting commissions to the court-
appointed Administrator C.T.A., Suzanne M. Kourlesis, Esq.,
attorney's fees and costs to the Kourlesis Law Firm, LLC (the Law
Firm), fees and costs to the court-appointed guardian ad litem
(GAL), Lori McNeely, Esq., and attorney's fees incurred by
respondent Debra Morrison. Donner also appeals from the November
15, 2016 order granting the Law Firm additional fees and costs.1
Because the appeal was untimely, we dismiss.
1
Donner also appealed from the September 2, 2014 order, but did
not address that order in his merits brief. Accordingly, any
issues relating to that order are deemed waived. N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 (App. Div.
2015); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2018).
2 A-2279-16T1
Donner and Morrison are siblings. Their mother, Pauline
Donner (the decedent), died on December 3, 2007. The decedent's
Last Will and Testament named Donner and Morrison as co-executors
of the estate. The decedent bequeathed her property located in
Westhampton to Morrison; her shares of stock in a family business
known as Debcris Commercial Warehousing, Inc. (Debcris) to Donner;
$10,000 to her adult granddaughter; $75,000 to each of her four
minor grandchildren; and her property in Pennsylvania and the
remainder of her estate to Donner and Morrison in equal shares.
The estate was probated and letters testamentary were issued to
Donner and Morrison on January 30, 2008.
A dispute arose between Donner and Morrison over the
administration of the estate and ownership of Debcris, the estate's
major asset. As a result, in December 2008, Morrison filed a
complaint in the Chancery Division, Probate Part, individually and
as co-executor of the estate, and a counterclaim and third-party
complaint against Donner, Network Relocation Services, Inc. and
Chris Donner, LLC.
In a March 3, 2009 order, the court discharged Donner and
Morrison as co-executors and appointed Kourlesis as Administrator
C.T.A. The Law Firm represented Kourlesis in this capacity and
the estate. In an April 4, 2011 order, the court granted
Kourlesis's motion to appoint a special fiscal agent for Debcris
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and appointed Jeffrey Apell, Esq. The court also appointed McNeely
as GAL for the decedent's minor grandchildren.
On January 22, 2013, the parties executed a settlement
agreement to effectuate the sale of property in Lumberton comprised
of two lots: Block 6, Lots 4 and 3.17. Debcris owned Lot 4 and
Donner owned Lot 3.17. The settlement agreement provided that
Donner would execute a deed of easement in consideration for
certain monetary distributions from the estate. The agreement
also provided for other distributions, including $50,000 for fees
Morrison paid to Archer & Greiner, and "[e]stimated attorney fees
and/or [a]dministration fees" of $35,000 to Kourlesis; $15,000 to
McNeely; $32,000 to Morrison's attorneys, Archer & Greiner; and
$20,000 to Apell. An addendum to the agreement provided: "Donner
shall receive $5,000.00 from [] Kourlesis fee in additional
consideration of his [release] of all claims against her."
In a January 22, 2013 order, the court dismissed the matter.
However, the estate was not closed, the court did not discharge
Kourlesis as Administrator C.T.A. or Apell as special fiscal agent
for Debcris, and the case did not settle. Rather, the litigation
continued over three more years, with the parties engaging in
motion practice and with claims raised against Kourlesis for breach
of fiduciary duty.
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In a September 2, 2014 order, the court granted Apell's motion
for an order authorizing him to sell the Lumberton property and
dissolve Debcris following the sale, and denied as premature his
request for an accounting of Debcris. In a January 16, 2015 order,
the court granted Apell's motion for an order granting him
attorney's fees to be paid from Debcris's account; approving the
accounting of Debcris from February 7, 2013 to October 31, 2014;
and permitting him to retain $10,000 for further expenses
pertaining to the dissolution of Debcris. The court also ordered
Apell to turn over the balance held in Debris's account after the
sale to the estate and Kourlesis.
The Lumberton property was sold on October 10, 2014. On
August 11, 2015, Apell sent the sale proceeds of $240,000 to
Kourlesis in a check payable to the estate.
Kourlesis's attempt to obtain Donner's and Morrison's consent
to an informal final accounting failed. As a result, on March 30,
2016, Kourlesis filed an order to show cause and verified
complaint, requesting approval of the final account of the estate
from the date of the decedent's death, December 3, 2007, to the
date of the closing of the account on March 15, 2016. She also
sought payment of administrator commissions, attorney's fees and
costs to the Law Firm, and McNeely's fees and costs.
5 A-2279-16T1
Kourlesis submitted the final account and an affidavit of
administrator's services and costs, requesting corpus commissions
of $35,676.62, income commissions of $2,014.39, and costs of
$1,899.85, minus the $30,000 she was paid under the settlement
agreement. On the Law Firm's behalf, Kourlesis submitted an
affidavit of counsel services and costs, requesting $31,150.16 for
attorney's fees and an additional $2500 to conclude the matter,
for a total of $33,650.16.
Donner and Morrision did not object to Kourlesis's final
account, but objected to her request for administrator commissions
and attorney's fees and costs. They argued the settlement
agreement capped Kourlesis's commissions and attorney's fees and
costs at $35,000. Morrison filed a motion for an order directing
Kourlesis to distribute $62,977.97 for attorney's fees she paid
to Archer & Greiner and for final distributions to the
beneficiaries.
In a July 29, 2016 order, the trial judge approved the final
account, granted Kourlesis administrator commissions in the amount
of $37,691.01, consisting of $35,676.62 for corpus commissions and
$2,014.39 for income commissions for the period ending March 15,
2016, and deducting the $30,000 already paid to her. The judge
also granted $33,650.16 to the Law Firm and her request for payment
of McNeeley's fees and costs of $3,468.72. The judge granted
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$62,977.97 to Morrison and granted her request to make final
distributions to the beneficiaries.
On the Law Firm's behalf, in September 2016, Kourlesis filed
a motion for an order approving payment of additional attorney's
fees of $9950 and costs of $680.92 for the period June 1, 2016 to
August 18, 2016, and submitted an affidavit of counsel services
and costs. In a November 15, 2016 order, the judge granted motion.
Thereafter, Apell filed a motion for an order approving the
final accounting of Debcris from October 27, 2015 to November 29,
2016, and for attorney's fees of $3,468.50 and costs of $189.57,
to be paid from Debcris's account, not the estate's account. In
a December 22, 2016 order, the court granted the motion and
discharged Apell as special fiscal agent. This appeal followed.
As a threshold matter, we address Kourlesis's and Morrison's
contentions that Donner's appeal, filed on February 3, 2017, was
untimely because the November 15, 2016 order was final. Donner
did not address this issue.
Appeals from final judgment or orders must be filed within
forty-five days of their entry. R. 2:4-1(a). "[O]n a showing of
good cause and the absence of prejudice, [this court] may extend
the time fixed by [Rule] 2:4-1(a) . . . for a period not exceeding
[thirty] days, but only if the notice of appeal . . . was in fact
served and filed within the time as extended." R. 2:4-4(a).
7 A-2279-16T1
N.J.S.A. 3B:17-8, provides as follows:
A judgment allowing an account, including a
guardian's intermediate 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 an
approval of the correctness and propriety of
the account, the legality and propriety of the
investments and other assets, the legality and
propriety of the changes in investments or
other assets, and the legality and propriety
of other matters, and also shall exonerate and
discharge the fiduciary from all claims of all
interested parties and of those in privity
with or represented by interested parties
except:
a. For the investments and other assets in
the fiduciary's hands at the close of the
period covered by the account, and assets
which may come into his hands after the close
of the account;
b. Insofar as exceptions to the account
shall be taken and sustained; and
c. As relief may be had from a judgment in
any civil action.
"A judgment approving an administrator's final account is
conclusive among the parties as to all issues which were raised
or might have been raised." In re Estate of Skvir, 170 N.J. Super.
559, 561-62 (App. Div. 1979). "Those parties who actually raise
and litigate an issue in an accounting proceeding are bound by the
judgment entered thereon." In re Estate of Yablick, 218 N.J.
Super. 91, 100 (App. Div. 1987). "In the absence of fraud or
mistake a judgment approving an accounting becomes conclusive upon
8 A-2279-16T1
the expiration of the time for appeal." Ibid. "[W]hen the time
for taking an appeal has run the parties to a judgment have a
vested right therein which cannot subsequently be taken from them."
In re Nuese, 15 N.J. 149, 152 (1954) (quoting In re Pfizer, 6 N.J.
233, 239 (1951)).
Here, the judge approved the final account for the estate in
the July 29, 2016 order. The December 22, 2016 order, which
related only to Debcris and Apell's discharge as fiscal agent, did
not affect the final account of the estate, as the Lumberton
property had been sold and the sale proceeds had been submitted
to the estate. Thus, Donner's time to appeal expired on December
30, 2016. His appeal, filed on February 3, 2017, was untimely.
Appeal dismissed.
9 A-2279-16T1