IN THE MATTER OF THE ESTATE OF GUY LANDSTROM Â ROBIN NEGLIA VS. WILLIAM CALDWELLÂ (046667 AND L-0403-13, HUNTERDON COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-1950-15T2
A-1959-15T2
IN THE MATTER OF THE ESTATE
OF GUY LANDSTROM, DECEASED.
_______________________________
ROBIN NEGLIA,
Plaintiff-Appellant,
v.
WILLIAM CALDWELL,
Defendant-Respondent.
_______________________________
Argued September 27, 2017 – Decided October 24, 2017
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Hunterdon County, Docket
No. 046667 and Law Division, Hunterdon County,
Docket No. L-0403-13.
Jeffrey M. Advokat argued the cause for
appellant Robin Neglia (Advokat & Rosenberg,
attorneys; Mr. Advokat, on the briefs).
William J. Caldwell, respondent, argued the
cause pro se.
PER CURIAM
In these back-to-back appeals, which we consolidate for
purpose of this opinion, Robin Neglia, as beneficiary of the estate
of Guy Landstrom, seeks reversal of an order granting summary
judgment in favor of the executor, William Caldwell. Neglia also
seeks reversal of an order quashing a subpoena. After
consideration of the record and application of controlling law,
we affirm.
Since we write solely for the parties who are well acquainted
with the matter, we provide a brief factual and procedural history.
After Landstrom died, a Last Will and Testament (Will) dated
May 15, 2010, was admitted to probate. Caldwell was named executor
in that Will. Neglia contested the Will and sought to admit to
probate a different Will dated May 1, 2012. After Neglia filed
an action, the parties, including the two children of Landstrom
and certain charitable interests, entered into a consent judgment.1
Pursuant to the terms of the judgment, the May 15, 2010 Will was
amended and admitted to probate. The sole matter unresolved by
the judgment was the estate's accounting. Thereafter, Caldwell
filed a final accounting in the Superior Court, Law Division,
Probate Part.
1
A cross-appeal filed by Landstrom's two children was dismissed
on August 5, 2016, due to failure to prosecute their cross-appeal.
2 A-1950-15T2
I.
Neglia filed exceptions to the final accounting. The
exceptions included: (1) the sale price of the real property
located in Flemington represented a significant loss in value;2
(2) the expenses incurred as a result of a burst pipe at the
property were not the responsibility of the estate but the
responsibility of the executor; and (3) listed disbursements for
repairs and maintenance were not an expense of the estate if they
were incurred as a result of the burst pipe. On July 17 and
September 21, 2015, a bench trial was conducted.
At the conclusion of the trial, the court rendered an oral
opinion approving the accounting subject to some minor exceptions.
In reaching its decision, the court held:
There were also issues raised in the
accounting in a — in challenges about the real
property and the amount sold. I have no
indication that the two [hundred] fifteen
[thousand dollar sale price of the home] was
wrong, unreasonable, inappropriate, a waste or
otherwise, and I can take judicial notice of
the fact that home values in this county have
2
Under the terms of the consent judgment, Neglia had until July
1, 2013, to pay the estate $25,000 as payment of account for
Neglia's share of her estimated transfer inheritance taxes due.
She also had until August 1, 2013, to provide proof of a written
mortgage commitment in the amount of $150,000, in furtherance of
her desire to purchase the Flemington property. If Neglia did not
satisfy the conditions, the estate was permitted to sell the
property. It is unclear which condition Neglia failed to satisfy.
The estate eventually sold the home for $215,000.
3 A-1950-15T2
been going all over the place over the last
several years so I don't find any basis for
upsetting the accounting on that basis.
With respect to the issue of the water
and the frozen pipe, this is not a res ipsa
case.3 The fact that the pipes were frozen
does not speak necessarily — that there was
negligence. Lots of people have pipes frozen
including yours truly. There are lots of
reasons why it might happen. . . . There's no
indication that [the executor] committed
negligence. I have no testimony on that
subject whatsoever and the burden is again on
the plaintiffs [sic] to justify the showing
that the — that there was negligence here and
I've heard nothing really to indicate it.
While the probate action was pending, Neglia filed a separate
action in the Law Division alleging that Caldwell engaged in
conduct that would constitute common law and statutory waste and
fraudulent concealment. Neglia averred that Caldwell failed to
notify either Neglia or the insurance carrier about the burst pipe
and the consequential damage, which decreased the value of the
Flemington property.
3
This is a reference to the doctrine of "res ipsa loquitur," which
permits the fact-finder "to infer negligence in certain
circumstances, effectively reducing the plaintiff's burden of
persuasion, but not shifting the burden of proof." Khan v. Singh,
200 N.J. 82, 91 (2009). Application of res ipsa loquitur requires
three fundamental predicates: "(a) the occurrence itself
ordinarily bespeaks negligence; (b) the instrumentality was within
the defendant's exclusive control; and (c) there is no indication
in the circumstances that the injury was the result of the
plaintiff's own voluntary act or neglect." Ibid. (quoting
Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).
4 A-1950-15T2
Neglia moved to consolidate the Law Division action with the
probate action. The motion, opposed by Caldwell, was denied as
was Caldwell's motion for dismissal. Neglia's motion for
reconsideration was also denied. Thereafter, in 2013 and 2014,
both parties filed motions and cross-motions for summary judgment
and for dismissal, which were denied. Neither party has filed an
appeal of those orders.
On November 16, 2015, Caldwell moved for summary judgment in
the Law Division action arguing that the issues in contest were
resolved by the probate action. Neglia opposed the motion and
cross-moved for summary judgment. Subsequent to oral argument,
the court granted summary judgment to Caldwell, dismissing the
complaint. In reaching the decision, the court held:
The issue in the probate matter was the
appropriateness of the accounting and, among
the challenges, were challenges to the values
for the house, whether there was inappropriate
conduct with respect to delay in selling the
house, whether there was inappropriate conduct
with respect to damages to the house that
should have been accounted for or somehow
referenced in the accounting.
. . . .
For the [c]ourt to allow this cause of
action to continue would, in effect, be giving
the plaintiff in this matter a second bite at
the apple in saying well, there should be an
effective re-litigation of the value of the
house, a re-litigation of the executor's
conduct in terms of protecting the house
5 A-1950-15T2
against harm, all of which were covered rather
thoroughly in the accounting action.
. . . [The claim] may have a different
name, waste and concealment, but the name
isn't the substance. And many of our cases
say we look at the substance of what’s being
alleged, not the title or the name given to
it. And, in substance, the [c]ourt dealt with
all these claims . . . finding that the
handling of the house, as set forth in the
accounting, was proper.
To get to that point, the [c]ourt had to
find that there was no waste with respect to
the house, that there was no need to account
for any waste, that the price that ultimately
sold for the house was reasonable under the
circumstances and that there was no damage
which should have been accounted — taken care
of in the accounting.
II.
After the probate trial but prior to the entry of the order
affirming the accounting, Neglia recalled that Landstrom had a
legal matter pending in Clinton Township at the time of his death
and that $6000 was held in Caldwell's trust account as a retainer.
The Clinton Township case was dismissed upon Landstrom's death.
The funds were not listed in the final accounting.
Neglia's counsel corresponded by letter to Caldwell seeking
information as to the whereabouts of the trust funds. Caldwell
replied that the information sought was subject to attorney-client
privilege and "[n]o additional information concerning those
representations [would] be provided[.]" Neglia's counsel again
6 A-1950-15T2
corresponded by letter to Caldwell stating that if Caldwell did
not reveal the information concerning the $6000 asset, a subpoena
would be issued with a request for fees and sanctions. A subpoena
was served on Caldwell requesting production of "any and all
documentation which indicates the location of the [$6000] that was
held for Guy Landstrom during 2011-[12]." Caldwell moved to quash
the subpoena.
On the same date the court granted summary judgment on the
Law Division case, the court granted Caldwell's motion to quash
holding that at the time the subpoena was served, the probate case
"was over." When Neglia's counsel objected, the court advised
that the case would need to be re-opened and that "you can't just
simply subpoena." An order was entered quashing the subpoena. No
further motions were made by Neglia seeking relief from the
judgment. See R. 4:50-1.
On January 14, 2016, Neglia filed a notice of appeal from the
December 23, 2015 order for summary judgment and the order of same
date quashing the subpoena.
On the appeal of the order granting summary judgment, Neglia
raises the following arguments:
POINT I
THE LOWER COURT'S ORDER OF DISMISSAL SHOULD
BE REVERSED.
7 A-1950-15T2
POINT II
DEFENDANT-RESPONDENT IS NOT ENTITLED TO
SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES
OF MATERIAL FACT WITH REGARD TO COUNTS ONE,
TWO, THREE.
POINT III
PLAINTIFF-APPELLANT'S COMPLAINT SHOULD NOT BE
DISMISSED WITH PREJUDICE BASED ON RES
JUDICATA.
POINT IV
PLAINTIFF-APPELLANT'S COMPLAINT SHOULD NOT BE
DISMISSED WITH PREJUDICE BASED ON COLLATERAL
ESTOPPEL.
On the appeal of the order quashing the subpoena, Neglia
raises the following argument:
POINT I
THE ORDER QUASHING THE SUBPOENA SHOULD BE
REVERSED.
We have considered these arguments after consideration of the
record and in application of relevant principles of law, and
conclude they lack sufficient merit to warrant extended discussion
in a written opinion. R. 2:11-3(e)(1)(E). We add only the
following.
At the outset we note that, while we affirm the order of
summary judgment in favor of Caldwell, we do so for different
reasons than those articulated by the motion court. Because we
review judgments, not decisions, we may affirm on any ground.
8 A-1950-15T2
Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004)
(quoting Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175
(1968)) ("Although we affirm for different reasons, a judgment
will be affirmed on appeal if it is correct, even though 'it was
predicated upon an incorrect basis.'"), rev'd on other grounds,
183 N.J. 508 (2005).
It is without dispute that Neglia has not appealed the
judgment allowing the account in the probate action. As this
court has held, a judgment allowing an account is final and
exonerates the fiduciary. Matter of Will of Maxwell, 306 N.J.
Super. 563, 577-78 (App. Div. 1997), certif. denied, 153 N.J. 214(1998). In Maxwell, we held:
A judgment allowing an account "after due
notice [is] res adjudicata" as to all parties
and "as to all exceptions which could or might
have been taken to the account." N.J.S.A.
3B:17-8. Such judgment acts to "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]s relief may be had from a
judgment in any civil action." Ibid.; see R.
4:50-1, -2. This concept of finality applies
to judgments approving intermediate
accountings as well as final accountings. In
re Estate of Yablick, 218 N.J. Super. 91, 100
(App. Div. 1987).
Neglia filed exceptions to the accounting that involved the
same waste and fraudulent concealment issues she alleged in the
Law Division action against Caldwell in his capacity as fiduciary.
9 A-1950-15T2
As such, the judgment affirming the accounting was res judicata
as to those exceptions, as well as all claims Neglia instituted
against Caldwell in the Law Division action.
We next turn to Neglia's appeal of the order to quash the
subpoena. Neglia argues, without citing any legal authority, that
"beneficiaries should always be allowed to find out what happened
to assets, whenever they are discovered."
A trial court's decision to quash a subpoena is reviewed by
an appellate court for abuse of discretion. State v. Medina, 201
N.J. Super. 565, 580-81 (App. Div.), certif. denied, 102 N.J. 298,
508 (1985). Reversal is warranted upon a finding that the trial
court's determination "constituted an abuse or mistaken exercise
of discretion[.]" State v. Johnson, 137 N.J. Super. 27, 30 (App.
Div. 1975). A subpoena may be employed as a method to obtain pre-
trial discovery. R. 1:9-2; R. 4:14-7.
Our Supreme Court has made clear that the purpose of the
broad pre-trial discovery rules is to prevent surprise at trial
and so that the parties are conversant with all available facts.
See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997) (citing
Jenkins v. Rainer, 69 N.J. 50, 56 (1976) ("Our court system has
long been committed to the view that essential justice is better
achieved when there has been full disclosure so that the parties
are conversant with all the available facts."). On the other
10 A-1950-15T2
hand, post-trial discovery permitted by rule is narrow. See R.
4:59-1(f) (supplementary proceedings in aid of judgment or
execution).
Here, the subpoena was issued after the conclusion of the
trial but before the entry of the order. This court has addressed
the issue whether a case is over at the close of trial or over
when the actual judgment is entered. See Parker v. Parker, 128
N.J. Super. 230 (App. Div. 1974). In Parker, the parties were
seeking dissolution of their marriage. Several days before trial,
the parties entered into a property settlement agreement. The
agreement was approved by the court at trial, and the plaintiff
signed the agreement. At the conclusion of trial, the judge
stated, "I will grant a dual judgment of divorce to each against
the other." A week later, the plaintiff's attorney submitted a
proposed form of the final judgment to the defendant's attorney,
however, it was never returned.
Approximately two weeks later, the plaintiff was killed in
an occupational accident. The plaintiff's attorney then brought
a motion to enter the divorce judgment nunc pro tunc and the court
entered judgment. On appeal, the defendant argued that the entry
of judgment was in error because the divorce action abated on the
plaintiff's death. We upheld the entry of the judgment in holding:
11 A-1950-15T2
It is clear that upon the close of
the divorce trial the court made a
definitive adjudication of the
controversy, reflecting its
conclusive determination that each
party be granted a divorce. In this
context, we subscribe to the view
that the entry of a written judgment
is essentially a non-discretionary
act by which evidence of the
judicial act is recorded.
[Id. at 232-33.]
We have also held that "the oral pronouncement of a judgment
in open court on the record constitutes the jural act and that the
entry of the written judgment is merely a ministerial
memorialization thereof." Mahonchak v. Mahonchak, 189 N.J. Super.
253, 256 (App. Div. 1983).
In this matter, the probate action concluded when the court
held that the accounting "was affirmed for the reasons stated."
Although the court granted the parties additional time to submit
a fee affidavit, there was a definitive adjudication of the
controversy. As the issue of the accounting was adjudicated,
there was no authority by rule for the issuance of the subpoena,
which was properly quashed.
Affirmed.
12 A-1950-15T2