IN THE MATTER OF THE ESTATE OF SELMA H. LEDERER(P-048-07 AND P-020-13, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 16, 2017
• Docket: A-0175-14T1/A-1042-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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