Opinion
DOCKET NO. A-3591-13T3 DOCKET NO. A-3801-13T3
08-31-2015
IN THE MATTER OF THE ESTATE OF RAFAELA VALDES
Lipsky Portales, P.A., and Daniel Connolly Carmalt (Lipsky Portales, P.A.) of the New York and Washington bars, admitted pro hac vice, attorneys for appellant Ivan Hernandez, in A-3591-13 (Elena Portales and Sean M. Lipsky, of counsel; Ms. Portales, Mr. Lipsky and Mr. Carmalt, on the briefs). Lipsky Portales, P.A., attorneys for appellant Ivan Hernandez, in A-3801-13 (Elena Portales and Sean M. Lipsky, of counsel and on the briefs). Thomas L. Curcio, attorney for respondents Estate of Rafaela Valdes and Alexi Hernandez.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. 305134. Lipsky Portales, P.A., and Daniel Connolly Carmalt (Lipsky Portales, P.A.) of the New York and Washington bars, admitted pro hac vice, attorneys for appellant Ivan Hernandez, in A-3591-13 (Elena Portales and Sean M. Lipsky, of counsel; Ms. Portales, Mr. Lipsky and Mr. Carmalt, on the briefs). Lipsky Portales, P.A., attorneys for appellant Ivan Hernandez, in A-3801-13 (Elena Portales and Sean M. Lipsky, of counsel and on the briefs). Thomas L. Curcio, attorney for respondents Estate of Rafaela Valdes and Alexi Hernandez. PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, plaintiff, Ivan Hernandez, appeals from a final order of the Chancery Division, Probate Part, dated September 3, 2013, dismissing his Order to Show Cause and Verified Complaint challenging the Last Will and Testament of Rafaela Valdes. Plaintiff also appeals from a final order dated March 21, 2014, dismissing a subsequent Verified Complaint and Order to Show Cause. We affirm substantially for the reasons expressed in each matter by Judge Hector R. Velazquez, and add the following brief remarks.
I.
We discern the following facts from the records of both matters. Rafaela Valdes ("Rafaela"), her two sons, plaintiff, and Alexi Hernandez ("Alexi"), were involved in various business pursuits including the ownership of certain real property. Rafaela and Alexi had disagreements with plaintiff, and, in 2008, they sued plaintiff, seeking partition of the real property in which each held a one-third interest. In February 2010, Rafaela executed a Last Will and Testament naming Alexi as Executor, bequeathing all of her estate to him and nothing to plaintiff. In February 2011, the parties entered into a settlement (the "Settlement Agreement") to resolve the partition dispute. Rafaela agreed to pay $35,000 to plaintiff for conveyance of his interest in the property to her. One year later, Rafaela and Alexi moved to appoint an attorney in fact to execute the deed transfer of plaintiff's interest, per the Settlement Agreement, to Rafaela.
Rafaela died on June 24, 2012, and, shortly thereafter, plaintiff moved in the partition action to vacate the Settlement Agreement, asserting that Rafaela had changed her mind about it and had entered into a new agreement with plaintiff. The court rejected this assertion. Plaintiff immediately filed a caveat to protest the will and, on August 22, 2012, filed a Verified Complaint to invalidate the will, asserting undue influence by Alexi and seeking his removal as Executor. Alexi filed an answer and a counterclaim for damages, and the matter was tried before Judge Velazquez.
After hearing testimony from plaintiff that he and Rafaela had reconciled prior to her death and that she had changed her mind, Judge Velazquez issued an oral decision on May 16, 2013, finding no undue influence and determining that, even if Rafaela had changed her mind, there was no evidence that suggested she attempted to change her will. On September 3, 2013, the court entered an order dismissing plaintiff's Verified Complaint, Order to Show Cause, and caveat. The order also directed the surrogate to accept the Last Will and Testament for probate. The issues relating to Alexi's counterclaim were deferred for subsequent proceedings.
The counterclaim was ultimately withdrawn. --------
In late 2013, the parties had not completed the transaction concerning the partition settlement, and Alexi compelled transfer of plaintiff's property interest, as required by the Settlement Agreement. On December 19, 2013, plaintiff filed a Verified Complaint and Order to Show Cause, asserting that prior to his mother's death, the two had reconciled and had reached a new agreement in June 2011 whereby plaintiff would pay Rafaela $8000 and he would retain his ownership of the property. He asserted that he had begun to make payments to Rafaela prior to her death. Plaintiff sought to enforce the June 2011 agreement as a claim against Rafaela's estate and sought Alexi's removal as executor, alleging that Alexi had embezzled assets and had conveyed the property to himself in violation of N.J.S.A. 3B:14-36. Alexi moved to dismiss the complaint pursuant to Rule 4:6-4(b).
Judge Velazquez determined that the matter should be dismissed in its entirety because all of the issues were addressed in prior proceedings and plaintiff had not demonstrated that Alexi should be removed as executor. The court entered a judgment of dismissal on March 21, 2014. Plaintiff appealed both the March 21, 2014 judgment of dismissal and the order of September 3, 2013.
II.
We first address plaintiff's appeal of the dismissal of his challenge to Rafaela's will based on a claim of undue influence. We review the factual findings made by a trial judge to determine whether they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Such findings made by a judge in a bench trial "should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Id. at 483-84. Factual findings that "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case" enjoy deference on appeal. State v. Johnson, 42 N.J. 146, 161 (1964).
After carefully reviewing the standard of review and the record developed by the parties before Judge Velazquez, we reject appellant's arguments and affirm substantially for the reasons expressed by Judge Velazquez in his oral opinion dated May 16, 2013. We will dispense with restating here the lengthy testimonial evidence presented by the parties at trial, and instead incorporate by reference Judge Velazquez's detailed exposition of factual findings, as reflected in his opinion. We add the following comments.
A trial court's principal duty in a contested probate matter is "to ascertain and give effect to the probable intention of the testator." Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 564 (1962) (citation and internal quotation marks omitted). With respect to plaintiff's assertions that Alexi exerted undue influence over Rafaela, Judge Velazquez considered the testimony of several witnesses over three days and found no evidence of any controlling influence over Rafaela that would justify invalidating the will. Moreover, the court accepted as credible the testimony of Thomas Paneque, the attorney who prepared the will for Rafaela, that Alexi had no involvement in the preparation of the will and that Rafaela was clear in her desire to leave everything to Alexi. Moreover, the court found no proof that Rafaela had ever contacted a lawyer to undo the Settlement Agreement or change the will as a result of changing her mind. We discern no error in the court's determination.
III.
We next address plaintiff's appeal of the order of judgment dismissing his complaint under Rule 4:6-4(b). Plaintiff argues that the trial court erroneously converted defendant's motion to dismiss under Rule 4:6-4(b) into a motion for summary judgment and mistakenly refused plaintiff's requests for oral argument. We disagree and again affirm for the reasons stated by Judge Velazquez. Rule 4:6-4(b) provides that:
[o]n the court's or a party's motion, the court may either (1) dismiss any pleading that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with [Rule] 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claim or defense based on the same transaction, the payment by the pleading party of attorney's fees and costs incurred by the party who moved for dismissal.
In referring to this rule, Judge Velazquez noted that a court may dismiss a pleading or any part thereof that is immaterial and redundant. To that end, the court reviewed the prior proceedings between the parties and determined that all of the issues raised had been precluded as a result of prior adjudications and were therefore properly subject to dismissal under Rule 4:6-4(b). In particular, the trial judge determined that, having previously found no evidence of undue influence in the validity of Rafaela's will, there was no evidence that suggested the transfer of plaintiff's property interest involved misconduct. Additionally, the trial judge considered that the alleged 2011 Agreement between Rafaela and plaintiff had previously been adjudicated and re-litigation was barred by the doctrines of res judicata and collateral estoppel because the court had already rejected the contention that the previous Settlement Agreement should be vacated. We agree.
We also reject plaintiff's additional argument that the 2011 Agreement was not previously adjudicated, as a review of the record demonstrates that the court considered plaintiff's attempt to vacate the Settlement Agreement and stated "you have to prove something other than a change of mind . . . you [must] show some kind of . . . coercion, deception, fraud undue pressure or unseemly conduct" in order to vacate a settlement. See, e.g., Brundage v. Estate of Carambio, 195 N.J. 575, 600-01 (2007) (holding that, absent a demonstration of fraud or other compelling circumstances, courts must honor and enforce settlement agreements).
Plaintiff's remaining argument regarding legal fees does not warrant discussion in a written decision. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION