IN RE: THE ESTATE OF SELMA H. LEDERER

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Superior Court of New Jersey, Appellate Division.

IN RE: THE ESTATE OF SELMA H. LEDERER,

DOCKET NO. A–2271–12T1

Decided: April 1, 2014

Before Judges Reisner, Alvarez and Carroll. Patrick Papalia argued the cause for appellant J.L., minor (Archer & Greiner, attorneys;  Mr. Papalia, of counsel;  Michael R. Olszak, on the brief). Harry D. McEnroe argued the cause for respondents Michelle Lederer and Mark R. Lederer (Tompkins, McGuire, Wachenfeld & Barry, L.L.P., attorneys;  Mr. McEnroe, of counsel and on the brief;  Christopher A. Stewart, on the brief). 1 Jay Joseph Friedrich argued the cause for respondents James Lederer, Jessica Lederer and Jeremy Lederer (Friedrich & Friedrich, L.L.C., attorneys;  Mr. Friedrich, on the brief).

J.L., a minor, through his mother and guardian ad litem, Trinity Bui, appeals from three orders of the Probate Part, all dated December 11, 2012.   For the reasons set forth below, we conclude that this appeal is interlocutory, and because the interests of justice do not require our intervention at this time, we dismiss the appeal.   See R. 2:2–4.

Briefly, the appeal arises from protracted ongoing litigation over the Estate of Selma H. Lederer.   There is a pending arbitration proceeding, which has thus far resulted in six interim arbitration awards.2  There is also a will contest pending in the Probate Part (the Probate lawsuit).   The Probate lawsuit, in which J.L. is the proponent of a will dated August 26, 2000, is currently scheduled for trial on April 21, 2014.

By way of background, Selma died in 2006, leaving the following survivors:  James Lederer;  James's three children, Jessica, Jeremy, and J.L;  and two other grandchildren, plaintiffs Mark Lederer and Michelle Lederer.3  Even before Selma's death, plaintiffs and James had engaged in bitter litigation, based on allegations that Selma lacked capacity and that James had misappropriated her assets.   In 2007, plaintiffs filed a lawsuit in the Probate Part against James, Jessica, and Jeremy.   The litigation involved a contest over, among other things, which of several wills, if any, was Selma's valid last will and testament.   During discovery, the parties found an additional will, dated August 26, 2000.   That will named J.L. as the beneficiary of twenty-five percent of Selma's estate.   None of the other known wills named J.L. as a beneficiary.   In 2009, the parties agreed to submit their disputes over Selma's estate to binding arbitration.

For reasons that are not satisfactorily explained on this record, although all parties knew there was one purported will that named J.L. as a beneficiary, J.L. was not added to the litigation as a party before the matter went to arbitration.   Nor, apparently, was he formally served with notice of the arbitration or the litigation.   It is not clear whether J.L., through his mother, who is James' ex-wife, had actual notice of J.L.'s interest in the litigation or the arbitration.

The arbitration first focused on a September 2000 will, which the arbitrator found was the product of undue influence.   The arbitrator then proposed to determine, in turn, the validity of each of the remaining wills, beginning with the next most recent will, which was the August 26, 2000 will.   James objected, contending that J.L. was a beneficiary of the August 26 will and had neither been added to the lawsuit nor consented to arbitration with respect to that will.   That issue was presented to the Probate judge, through objections to the scope of the arbitration.   On February 28, 2011, the judge ruled that the arbitration agreement was broad enough to encompass all of Selma's purported wills.

The judge did not order that J.L. be given notice, but observed that if any individuals claiming an interest in the estate wished to do so, they could move to intervene in the arbitration or the litigation.   Perhaps all parties, including the court, operated on the assumption that since James was J.L.'s father, he would naturally give his ex-wife notice of the proceedings in his son's interest.   There is some indication in the record that the ex-wife may have had notice and may have consulted with counsel.   However, not only is the record before us completely inadequate to support any findings on the issue, but the issue may be actually litigated in the pending Probate lawsuit.

After the Probate judge ruled on the scope of the arbitration, the parties arbitrated the validity of the August 26, 2000 will.   J.L. was not a party to that arbitration.   On September 18, 2012, the arbitrator determined that the August 26 will was also the product of undue influence.   On October 5, 2012, he awarded plaintiffs approximately $500,000 in counsel fees, payable from the estate.   The arbitrator entered interim arbitration awards reflecting his decisions.

Plaintiffs moved before the Probate Part to confirm the September 18 and October 5 arbitration awards.   At this point, J.L. filed a motion to intervene and to set aside the awards.   In support of the motion, J.L.'s mother, Trinity Bui, submitted a certification acknowledging that she lived next door to her ex-husband James, but stating that due to their estrangement, James had never told her about the August 26 will or J.L.'s potential interest in the estate.   She attested she did not know that the will existed or was the subject of litigation, until October 2012, when James told her that an arbitrator had declared the will invalid.   She asserted that it was unfair to J.L. to award plaintiffs a half million dollars in counsel fees from the estate, thus potentially diminishing his inheritance, for an arbitration from which he had been unfairly excluded.

Plaintiffs contended that Trinity must have known about the litigation earlier;  they argued that she and James colluded to withhold J.L.'s claims until the arbitration was over in order to give James a “second bite of the apple” in case, as occurred, the arbitration result was unfavorable to him.

Expressing some skepticism about Trinity's contentions, the Probate Judge appointed her as J.L.'s guardian ad litem and permitted J.L. to intervene, but declined to set the arbitration awards aside.   Instead, he confirmed the awards, but only with respect to the parties who had participated in the arbitration.   The judge gave J.L. two choices, either of which would have given him the opportunity to re-litigate the validity of the August 26, 2000 will.   The judge ruled that J.L. could intervene in the arbitration and ask the arbitrator to re-hear and re-decide the issue of the will's validity.   Alternatively, the judge held that J.L. could file the August 26 will for probate and, if plaintiffs filed a caveat, could litigate the will's validity in the Probate Part. The judge ruled that, in that context, plaintiffs would have the right to make a factual record on their claims of laches or collusion.   While the judge confirmed the arbitrator's fee award to plaintiffs, he stayed the payment of any funds from the estate pending the outcome of whichever further proceeding J.L. chose.

The parties have advised us that J.L. chose to submit the will for probate.   Plaintiffs objected to the will, triggering a lawsuit in the Probate Part over the validity of the will.   At oral argument, all counsel confirmed to us that the Probate lawsuit is scheduled for trial on April 21, 2014.   At oral argument, we were also advised that the parties to the Probate lawsuit are J.L., plaintiffs, and the substitute administrator of the estate.4  At that trial, plaintiffs, J.L., and the estate administrator will litigate the validity of the August 26, 2000 will.

J.L. argues that if the Probate Judge finds that the will is valid, it will affect the ongoing arbitration, because there can only be one valid will governing Selma's estate.   He also argues that the fee award was unwarranted.   We note that, in his decision confirming the arbitration awards, the Probate Judge stated that if subsequent litigation determined that the will was valid, he would then reconsider the fee award to plaintiffs.   We also note that if the judge finds the August 26 will is valid, J.L. may then seek to re-open the December 11, 2012 order confirming the arbitration award holding that the will was invalid.   But those issues are not ripe for our consideration now.

As the foregoing discussion illustrates, given the procedural posture of the case, this appeal is clearly interlocutory.   None of the orders on appeal are final, because they do not conclude all issues as to all parties.   See R. 2:2–3(a)(1);  House of Fire Christian Church v. Clifton Zoning Board, 426 N.J.Super. 157, 159 (App.Div.2012).   To the contrary, they contemplate that there will be further proceedings before a final order is entered.   We conclude that it would be premature to issue what would amount to an advisory opinion concerning the results of a trial that has not yet occurred and post-trial motions that have not yet been filed.   Because our interlocutory intervention is not now required, leave to appeal is not warranted, and the appeal is dismissed

Dismissed.

FOOTNOTES

2.  FN2. A copy of the Sixth Interim Arbitration Award was provided to us during the pendency of this appeal, in response to our inquiry as to the current status of the arbitration.   That award decides certain issues but plainly contemplates further arbitration to decide additional, outstanding issues.

3.  FN3. Intending no disrespect, we refer to the parties by their first names, to avoid confusion.   We refer to Mark and Michelle as plaintiffs, because that was their status in the underlying litigation that led to the arbitration.   Where appropriate, we refer to James, Jessica, Jeremy, Mark and Michelle, collectively, as “the parties.”

4.  FN4. Earlier in the litigation, the Probate Judge removed James as the executor and appointed a substitute administrator.   Because James is accused of mishandling the estate, his and J.L.'s interests do not entirely coincide, although on this appeal, James filed a brief supporting J.L.'s arguments.   James did not separately appeal from the order confirming the arbitration award invalidating the August 26 will, and he apparently chose not to participate in the Probate lawsuit.

PER CURIAM

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