                             NOT FOR PUBLICATION WITHOUT THE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-2499-17T2

IN THE MATTER OF THE
ESTATE OF JANE E. GEHRKE,
     Deceased.
___________________________

                Submitted April 29, 2020 – Decided June 29, 2020

                Before Judges Koblitz, Whipple and Gooden Brown.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Morris County, Docket No. P-
                0864-2006.

                Alan R. Adler attorney for appellant/cross-respondent
                Jeryl Ehrhard.

                Paul A. Woodford attorney for respondents/cross-
                appellants F. Scott Gehrke and Karen Fetchin.

PER CURIAM

       This estate dispute pits family members against each other over their

mother, decedent Jane Gehrke's, estate. Plaintiff Jeryl Ehrhard appeals a July

11, 2017 Chancery Division order granting summary judgment to defendants, F.

Scott Gehrke (Scott) and Karen Fetchin (Karen). Defendants cross-appeal from
a provision of the January 9, 2018 order denying plaintiff's motion for

reconsideration that denied defendants counsel fees.1

      Plaintiff argues certain requirements of the Rules of Court were

disregarded and that issues of material fact exist precluding relief, and thus the

summary judgment order was improvidently granted. Defendants argue they

were entitled to counsel fees because plaintiff's motion for reconsideration was

frivolous. Because our de novo review revealed no fatal procedural errors and

plaintiff provided no competent evidence of wrongful conduct on the part of

defendants in performing their fiduciary duties, and because the trial court

correctly denied defendants attorney's fees, we affirm as to both the appeal and

cross-appeal.

      We discern the following facts from the record of the summary judgment

motion including certifications of the parties. Decedent died in March 2006 and

her will was admitted to probate April 25, 2006. Plaintiff's brother, Scott, and

sister, Karen, were named co-executors. The beneficiaries of the estate were all

of decedent's children—Scott, Karen, Jill Main, plaintiff, Russell Gehrke,



1
   As to the motion for reconsideration, plaintiff did not appeal that motion and
only makes arguments in rebuttal to defendants' arguments that it was frivolous.
Since plaintiff did not appeal nor brief the motion for reconsideration, that issue
is not before us.
                                                                           A-2499-17T2
                                        2
Robbin Gehrke, and Lauren Stephens—as well as decedent's granddaughter

Arianna Pelullo. At the time of decedent's death, her husband Forrest's estate

was still being administered by co-executors Scott, Karen, and Russell.

      Decedent and her husband were antique collectors, as well as collectors

of items and papers of historical and cultural significance, all kept in the family

home in Mountain Lakes, where they lived for over forty years. Sorting the

home's contents was a large task undertaken primarily by Scott, Russell, Jill,

and Karen. During the year it took to empty the house, they maintained the

property and kept it secure.

      While going through decedent's house, Scott found paperwork from 1959

for the sale of two paintings given to decedent by a great aunt. The paperwork

represented that the paintings were on loan to the King Manor Museum in

Jamaica, Queens, New York since 1920.          The value of the paintings was

unknown, and despite multiple contacts with the museum, the museum would

not confirm the condition of the paintings or even if they were in their

possession.

      Attorney Jeffrey Bascelli was retained to assist with the administration of

the estate. However, Bascelli did not inform defendants he was not responsible

for filing the tax returns, whereas defendants thought he was and trusted he


                                                                           A-2499-17T2
                                        3
would do so, and the estate incurred tax interest and penalties of $25,700.99 and

$14,057.04, respectively, for late filing.

      Defendants considered filing an action against Bascelli for not providing

them with necessary guidance, but weighed the cost-benefit of pursing litigation

and decided the penalties, which came out to $5000 per beneficiary, were not

worth risking the costs of an attorney, experts, filing fees, and deposition costs

for an uncertain result. Even had taxes been timely filed, some interest or

penalties may have resulted from underestimates of the value of some assets.

Dissatisfied with Bascelli's services, defendants then relied on advice from

attorney Harrison Gardner.

      Defendants conducted a beneficiary auction of items from the house in

early January 2007; an inventory sheet detailed over 450 items from the estate

up for bid by the beneficiaries, and the items were displayed along with a

property listing. All beneficiaries received the list of items, and all had the

opportunity to inspect the items as well as the residence.

      The house sold in March 2007 for $865,000, and the proceeds were split

between the estates. Forrest's estate also contained life insurance policies that

were to go to decedent, and then to her estate.




                                                                          A-2499-17T2
                                         4
      An initial informal accounting that had been managed and approved by

Bascelli was sent to all beneficiaries in April 2010. All of the beneficiaries

executed releases except Lauren and plaintiff. Plaintiff asked defendants for

more documents, which they sent. After plaintiff still refused to sign releases,

defendants, at the suggestion of Gardner, had certified public accountant (CPA)

Peter Snyder prepare formalized accountings, which were sent to all

beneficiaries after they were completed.

      Decedent's estate also contained multiple retirement accounts. There were

no beneficiaries listed on the accounts, and after consulting with Gardner,

Snyder, consultants from Vanguard, and the Vanguard Custodial Agreement,

Scott advised the beneficiaries they could not directly inherit the funds as IRA

accounts, but that they would have to be liquidated and distributed to the estate

as taxable income.    While the accounts qualified for a five-year deferred

payment, which would push the tax to the individual beneficiaries rather than

the estate, it would only work if all beneficiaries agreed and refunding bonds

were signed by all for each distribution. Defendants decided the estate would

pay the one-lump sum payment at the conclusion of the five-year deferral period.

      The accountings showed commissions due to the co-executors on the

estate property, in accordance with N.J.S.A. 3B:18-14, of $91,202.41 and on


                                                                         A-2499-17T2
                                       5
income, in accordance with N.J.S.A. 3B:18-13, of $16,198.41, for a total of

$107,400.82. Subtracting sums already paid on the account between December

2009 and January 2010 to: Russell (shared commission), two payments each of

$4263.40; Scott, two payments each of $34,106.30; and Karen, two payments

each of $4263.30, the total still due to defendants was $22,134.82.

      In February 2012, plaintiff requested more documents, which defendants

supplied. Defendants heard nothing from plaintiff until October 2012, when

plaintiff filed suit against them alleging defendants provided her limited and

incomplete information regarding the status of the administration of the estate;

defendants acted improperly and negligently; and after more than six years since

decedent's death, plaintiff had not yet received a distribution of her share of the

estate. Plaintiff alleged defendants breached their fiduciary responsibilities,

claiming defendants made "substantial payments" of commissions to themselves

out of the estate without court approval; they improperly paid commissions to

Russell, who was not a co-executor of decedent's estate but only of Forrest's

estate; and that they reported commissions on decedent's estate for services

performed in connection with Forrest's estate to make up for their failure to

report those commissions as a liability to Forrest's estate.




                                                                           A-2499-17T2
                                        6
      Plaintiff also contended defendants' late tax filing resulted in "significant

penalties and interest," and alleged defendants mismanaged the retirement plans

by liquidating them instead of electing the five-year payout, which generated

substantial income tax liabilities. Plaintiff also asserted defendants should sue

the museum to recover the paintings. Finally, plaintiff alleged the April 2010

accounting sent to her with the refunding bond and release, when compared with

Forrest's estate, revealed some of the assets that were to go from Forrest's estate

to decedent's estate were missing, which totaled $220,490.

      The court entered a scheduling order restraining distributions or transfers

of funds or assets for any reason without prior written consent of plaintiff .

Defendants were ordered to provide plaintiff with records of the engagement

agreement with Bascelli and copies of monthly statements issued by involved

banks for each estate account, along with a ledger identifying all distributions

and disbursements made by co-executors during the entire existence of the

estate.

      In October 2014, after a court-ordered mediation resolved some issues,

plaintiff emailed the other beneficiaries, asserting the following unresolved

issues remained: (1) legal fees for Bascelli, alleging his accounting was

fraudulent and the estate should be reimbursed for his fees; (2) management of


                                                                           A-2499-17T2
                                        7
retirement accounts, in that failure to timely distribute the accounts meant she

would have to work an additional year, and she would limit her damages to

$15,000 if the matter settled, but would ask for more if it did not; (3) executor

commissions; (4) plaintiff's legal fees; (5) completion of estate administration,

asserting that Karen and Scott should be "closely supervised" if permitted to

continue administering the estate, and that the bulk of assets should be

distributed within thirty days and closed out within ninety days; (6) Snyder's

accounting fees, asserting he should be paid at bookkeeper rates; (7) legal fees

of defendants Scott and Karen; and, for the first time, (8) high-value assets

allegedly taken from the estate.

      While plaintiff claimed certain allegedly high-value items were missing

from the estate, defendants asserted the estate never contained those items.

However, plaintiff alleged the items were "fenced" and put up for bid at auction

house Bonhams. She sought to depose Bonhams' representatives, and requested

files generated or assembled by Bonhams related to: appraisals or auctions of

property for decedent's estate; all beneficiaries; and other named individuals.

Plaintiff also subpoenaed files related to auctions (Lots) of six items: (1) a first

edition copy of The Sun Also Rises; (2) a first edition copy of The Beautiful and

the Damned; (3) a 1790 United States Census Document signed by Thomas


                                                                            A-2499-17T2
                                         8
Jefferson; (4) The First Wall Map of the Entire Continental United States by

John Melish; (5) a photograph of Abraham Lincoln; and (6) a photograph of the

Andrew Johnson impeachment committee. Plaintiff further asked for entire files

of anyone else connected to the enumerated items.

      Bonhams responded that the only party named in plaintiff's request who

had an account at Bonhams was Gardner, but there was no record of any

purchase or consignment tied to him. As to the Lots for the six items, Bonhams

reported they "were consigned through five different and unassociated accounts,

none of which appear to be associated in any way with any of the [n]amed

[p]arties." Bonhams further stated the Lots originated from "various, distant

geographic locations" which they asserted suggested they "were not improperly

consigned from [decedent's] [e]state, but rather were separately floating in the

stream of commerce long prior to their consignment to Bonhams." Bonhams

also stated the six items were not necessarily unique in that there were varying

numbers of all those items in existence.

      Bonhams further contended

            based on the foregoing we simply have no reason to
            believe that the Lots offered through Bonhams of items
            that exist in multiples are the same physical copies as
            the [e]state alleges were once in its possession. The
            statements in [plaintiff's] [e]mail elaborating on the
            family's history, while fascinating, do not constitute the

                                                                         A-2499-17T2
                                        9
            type of salient details which would support a positive
            identification of the specific Lots. Neither does the
            "provenance" document provided . . . while it provides
            plausible provenance for a copy of the 1790 census
            document (of which it bears repeating that at least six
            other copies have been sold since 2004), it does not tie
            [decedent's] document to the Lot offered through
            Bonhams, nor does it provide any justification why this
            alternate provenance should be substituted for the
            Gideon Granger provenance with which the Lot was
            offered at both Bonhams and Sotheby's.

                  In fact, [plaintiff] has not produced any
            information, including a formal theft report or historic
            family documents such as appraisals or inventories,
            which confirms the [e]state's assertion that such items
            were ever in the [e]state's possession. We do not mean
            to sound dismissive in the face of what is no doubt a
            trying experience for [plaintiff] and her family.
            However, on the basis of the material provided to us,
            we simply cannot conclude that the Lots offered
            through Bonhams have anything to do with the [e]state.

Bonhams refused to offer plaintiff confidential client information related to the

Lots, but did later state it was willing to provide plaintiff with names and contact

information for the consignors of the six items, as well as copies of the contract

paperwork for each consignor.

      On or around February 2016, defendants moved to dismiss, as the case

was three years old and plaintiff had not named an expert or produced an expert's

report supporting the allegations in her complaint. In support of the motion,

defendants presented Scott's sixty-one-numbered-paragraph certification.

                                                                            A-2499-17T2
                                        10
Defendant's asked the court to dismiss the complaint with prejudice; to allow

the conclusion of the administration of the estate and disbursal of funds to the

beneficiaries; and to approve the distribution of the balance of executor

commissions. Defendants also asked the court to order plaintiff to reimburse

the estate for the incremental attorney and accounting fees incurred as a result

of her frivolous claims, which had not benefitted the estate, but rather served to

delay and frustrate its finalization.

      All beneficiaries except plaintiff filed certifications in support of

defendants' motion, asserting Scott's certification accurately reflected the facts

in the case, including agreements reached by all beneficiaries that gave plaintiff

the rights to the paintings and that reimbursed her for her portion of the tax

penalties and interest. Robbin, Lauren, Jill, and Arianna added they were aware

of how hard defendants worked on the estate, believed defendants earned the

commissions listed in Scott's certification, and asked the court to approve them.

      Plaintiff opposed defendants' motion.          She reiterated many of the

allegations of her prior certifications, including that the tax interest and penalties

issue was not resolved. She also continued to assert the retirement accounts

were improperly liquidated, causing her to suffer damages in that "[p]roper

distribution would have allowed the heirs to manage the assets to best meet their


                                                                              A-2499-17T2
                                         11
individual retirement and tax goals," offering a hypothetical of how she would

have used the alternate distribution to her personal benefit.

      Plaintiff further alleged that while her mother suffered from dementia and

her father was ill with terminal brain cancer, valuable items disappeared from

the home. She claimed she became aware of numerous items she "believe[d]"

belonged to her mother advertised for sale in "newsprint, internet articles,

auction websites and even on television," including the 1790 census which she

contended her father found in a box from decedent's cousin's estate. Plaintiff

asserted she and her father "compared Jefferson's document signature to a

replica of the Declaration of Independence" and that it was one of her "favorite

memories" with her father. Plaintiff alleged the document was auctioned in

2010 at Sotheby's for $68,000, and that further research revealed it was offered

for sale in a prior Bonham's auction in October 2010. When she researched that

auction she "was shocked to find many of [decedent]'s missing items were

included among the offered lots" including an Indian deed related to the New

Paltz Huguenot settlement, which plaintiff claimed was one of the items found

in decedent's house and held out of the family auction for appraisal. Plaintiff

also asserted there were valuable antique comic books from decedent's cousin's

estate, which defendants did not report finding.


                                                                        A-2499-17T2
                                       12
      Plaintiff asserted these auctioned items were "fenced" by trade dealers in

Massachusetts, Los Angeles, and Maine through people with tenuous

connections to her siblings. Plaintiff offered other unproven connections that

were untethered to any proofs for additional items allegedly from the estate that

she considered "high value artifacts." All of her assertions were denied by her

siblings.

      In support of defendants' summary judgment motion, Snyder submitted a

certification attesting he had been an accountant since 1978, became a CPA in

April 1984, and had prepared over three hundred fiduciary accountings

including estates, trusts, and guardianships; the guardianship accou ntings were

prepared for presentation and approval by the courts. He stated he did not know

or have any contact with the executors or beneficiaries prior to being retained.

      Snyder certified it was his understanding one of the beneficiaries found

Bascelli's informal accounting format unacceptable, so Gardner contacted

Snyder in the fall of 2010 to bring it into a formal accounting format. Snyder

found Bascelli's accounting "inadequate and not salvageable" so he started over

with an informal accounting for decedent, and also prepared related accountings

for Forrest's estate, as well as for a testamentary marital share trust and a credit




                                                                            A-2499-17T2
                                        13
shelter trust. As of his certification, he had created six accountings related to

decedent's and Forrest's estates.

      As to the co-executor commissions paid to Russell as belated payments

for work done on Forrest's estate paid out of decedent's estate, which plaintiff

alleged was improper and resulted in a loss to the estate, Snyder certified: the

unpaid commissions for Forrest's estate would be deductible on a future federal

fiduciary income tax return when the commissions were paid; Snyder consulted

with Gardner, who specialized in estate and trust work, and was informed the

back commissions were payable; and Snyder's understanding of the commission

attributed to Russell from decedent's estate was that it was taken out of Scott

and Karen's commissions, as the commissions claimed on decedent's federal

estate return matched the commissions paid from decedent's estate.

      As to the allegedly-missing funds, Snyder certified he re-reviewed all

documentation, created a spread sheet outlining the disbursement of funds from

Gardner's trust account, and reviewed copies of insurance checks, deposit slips,

and the bank statements for the various accounts, and found all insurance

proceeds were accounted for, and that the executors "properly accounted for all

funds and promptly deposited them in the proper accounts.          Nothing was

misplaced or lost."


                                                                         A-2499-17T2
                                      14
      As to the retirement accounts, Snyder certified he, Gardner, and Scott

discussed them and reached the conclusion the beneficiaries could not directly

inherit the funds as IRA accounts but that they would have to be liquidated and

distributed to the estate as taxable income.

      At the hearing, defendants argued several of the issues plaintiff alleged in

her complaint were resolved at the August 2014 mediation. Specifically, all

other beneficiaries had agreed to reimburse plaintiff for her share of the tax

penalties and interest out of their own shares of the estate, and to give plaintiff

rights to the two paintings should she successfully recover them from the

museum through her own efforts.          Plaintiff's counsel conceded the other

beneficiaries agreed to reimburse plaintiff for her portion of the tax interest and

penalties, and that the issue of the two paintings was resolved.         However,

plaintiff asserted the retirement accounts should not have been liquidated and

that she suffered a loss from higher tax liability as a result, and contended the

issue of Bascelli's fees was also still in dispute, as she did not agree he should

be paid due to his "poor work." When the court asked for evidence of the

existence of allegedly missing artifacts in the estate, plaintiff's counsel conceded

plaintiff never saw them herself, except for the 1790 census.




                                                                            A-2499-17T2
                                        15
      The court granted defendants' summary judgment motion, finding plaintiff

did not substantiate her claims "beyond mere allegations and bald assertions."

As for the tax interest and penalties, the court found while plaintiff in her

opposition stated the estate should be reimbursed by defendants, "such remedy

would ultimately render the same relief" as the currently-agreed-upon remedy

where the other beneficiaries would reimburse plaintiff for her share of the loss.

The court further found plaintiff had not demonstrated any portion of the

penalties or interest was due to the neglect of defendants, and that defendants

asserted the penalties were due to the complexity of both decedent's and Forrest's

estate, their reliance on Bascelli's legal advice to obtain title of the paintings

before filing, as well as prioritizing cleaning out the residence to secure and

distribute personal property assets and financial records. Therefore, the court

granted summary judgment on this claim.

      Plaintiff had taken the rights to the paintings, so summary judgment was

also granted as to this claim. As to the life insurance policies and the sale of the

house, the purportedly missing funds, plaintiff conceded the funds "reappeared

in the new estate accounting" and the court found they were reflected in Snyder's

accountings and provided to plaintiff, so summary judgment was granted as to

this claim as well.


                                                                            A-2499-17T2
                                        16
      The court found plaintiff had not provided any evidence to sustain her

allegations that defendants mismanaged the retirement accounts.            It noted

defendants consulted with counsel, Snyder, consultants from Vanguard

Securities, and reviewed the Vanguard Custodial Agreement "in order to make

a well-informed decision as to managing the distributions," and found their

handling was on the advice of financial advisors at Vanguard Securities and

"appears to be a prudent exercise of the responsibilities" under N.J.S.A. 3B:20-

11.3(a), (b), and (e), as well as In re Beales Estate, 13 N.J. Super. 222, 228 (App.

Div. 1951). The court noted plaintiff neither provided an expert report to show

defendants' handling of the retirement accounts was incorrect or contradicted

Snyder's conclusions, nor did she provide evidence they disregarded

professional advice they received, and granted summary judgment as to this

claim.

      The court further found the loss plaintiff asserted in tax implications

related to commissions belatedly paid to Russell for his work on Forrest's estate

was refuted by Snyder and Gardner, in that back commissions were payable and

deductible on future tax returns. Because plaintiff did not dispute the work done

on behalf of the estate, and there was no showing of bad faith in the commissions




                                                                            A-2499-17T2
                                        17
claimed by defendants, the court granted summary judgment as to that claim as

well.

        As for the payments to Bascelli, the court found defendants appropriately

discharged their duties in hiring an attorney to aid in administering the estate,

under N.J.S.A. 3B:14-23(l), and in subsequently retaining a different attorney

when they became dissatisfied with his services. The court found defendants

made a business decision not to pursue a claim against Bascelli, and that there

was no indication of willful or negligent conduct by defendants, and granted

summary judgment on this claim.

        Regarding the alleged conversion of personal property, the court found

none. The court noted the burden of showing there are more assets in an estate

than were acknowledged by the executors in their inventory or account is on the

exceptants, and their allegations "must be sustained with reasonable certainty"

under In re Estate of Perrone, 5 N.J. 514, 521 (1950), and found plaintiff did not

meet that burden. Instead of stating her claim at the 2007 beneficiary auction or

in her 2012 court filings, plaintiff first raised the issue of missing assets at the

August 2014 mediation, and provided only bald assertions. Plaintiff's subpoena

to Bonhams, which the court noted was served without copying defendants '

counsel, revealed no connections to any interested parties, and plaintiff's theory


                                                                            A-2499-17T2
                                        18
regarding contacts of beneficiaries selling items on their behalf was

unsupported.

      The court found defendants were permitted to engage Snyder as an

accountant under N.J.S.A. 3B:14-23(x), and since plaintiff provided no expert

report to support her claim that his fees were excessive, summary judgment was

granted on this claim.

      Finally, the court ruled neither party was entitled to counsel fees, as

plaintiff had not brought a successful challenge, but advanced weak claims

without support, and defendants had not submitted a certification of services by

counsel, complied with the requirements of Rule 4:42-8, nor provided plaintiff

written notice of their intention to seek sanctions as required.

      In August 2017, plaintiff moved for reconsideration, asserting the process

was not compliant with court rules, in that the order was prepared in part by

defendants and was not submitted to plaintiff for review prior to the order 's

execution. Plaintiff contended none of the methodologies were followed under

Rule 4:42-1(b) or (c), and that this prejudiced plaintiff's interest in that she was

not given the opportunity to comment on the order "in its formative stage."

      Plaintiff also claimed she did earlier verbally object and question where

certain items were, including her mother's Chippendale secretary desk, which


                                                                            A-2499-17T2
                                        19
she claimed she recently learned was auctioned and sold, referencing an attached

photo. Plaintiff contended the 2007 inventory was only for lower-value personal

items, and that an inventory of "investment grade collectibles" was never shared

nor included in Snyder's accounting statements. Plaintiff also challenged that

the interest and penalties issue was resolved.

      Plaintiff alleged more missing items from the estate including an

"extensive collection of rare stamps and coins," and claimed that after the

hearing she "became aware" a sizable portion of the stamp collection had been

auctioned by Phil Weiss Auctions of Oceanside, New York, and a review of the

website indicated the proceeds were "approximately ten million dollars." She

stated an internet search identified David Cobb as the owner of the Newport

Harbor Stamp Company, that she "obtained a video file of the 'Newport' auction

where [she] identified a man who appears to match a photo of David Cobb " and

argued defendants and Cobb are seen on the video celebrating when the price

reached a million dollars.    Plaintiff claimed shortly thereafter she "had a

discussion" with various law enforcement agencies, including the Federal

Bureau of Investigations (FBI).

      Plaintiff claimed she received a call on June 16, 2017, from an FBI special

agent assigned to her criminal complaint who stated he would set up a series of


                                                                         A-2499-17T2
                                      20
meetings in the near future, and apologized for the year-long delay in contacting

her; plaintiff attached a call log to support this claim. She also claimed she had

been corresponding with another detective with another law enforcement

organization that "may be related to the actions" of defendants and may impact

decedent's estate, but that the detective "has not authorized [her] to reveal the

details of our correspondence."

      Plaintiff also asserted she was entitled to attorney's fees, as her discovery

of the one million dollar stamp collection, which would "likely" result in it being

restored to the estate, as well as the $220,900 that she alleged would not have

been accounted for had she not brought defendants' attention to it, benefitted the

estate.

      Scott executed a certification responding that the desk referenced by

plaintiff was never mentioned by her, and that decedent's desk was a period

maple Queen Anne Lid Desk, c. 1780, not a Chippendale desk, that it was

contained in the inventory, and Lauren was the successful bidder at $3900.

      Scott noted that in eleven years, plaintiff never referenced a missing stamp

and coin collection. Scott asserted their parents only had a moderately-sized

coin collection of unknown value many years earlier, and decedent built a "small

stamp collection of little value" from cancelled foreign postage stamps affixed


                                                                           A-2499-17T2
                                       21
to postcards. No beneficiaries who searched the house after decedent's death

found a coin collection. Scott certified no collection records were found and he

did not believe there were any; defendants last saw the coin collection in the

early 1970's when Forrest was out of work and he and decedent consulted

valuation books, and it had not been seen since. Scott denied that he or anyone

else remotely connected to the estate was present at the referenced stamp

auction. He asserted plaintiff's claims were frivolous, and asked for counsel and

accounting fees incurred in defending the motion for reconsideration.

      The court denied the motion for reconsideration in an order filed January

9, 2018, accompanied by a written statement of reasons, wherein it considered

plaintiff's new evidence which "[the party] could not have provided on the first

application." (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.

1990)).

      As to the alleged new material facts—that the FBI was currently

investigating theft; a high value stamp and coin collection had been unlawful ly

converted by defendants; and a valuable desk had gone missing—the court found

the claim without merit, as the estate was more than ten years old, and at no

point was there ever any indicia any items plaintiff was now claiming as missing

were ever in the estate. The court rejected plaintiff's self-serving statements and


                                                                           A-2499-17T2
                                       22
comments used to corroborate her allegations, and found her new round of bald

assertions were not probative nor competent, as required by Fusco v. Board of

Education of the City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002).

The court found that after ten years, at least six accountings, all of which had

been provided to plaintiff, and years of litigation, it was "wholly unreasonable

that [p]laintiff continues to ostensibly identify missing items belonging to the

estate," and that she could have reasonably brought these items to the attention

of the court in her initial complaint.

      The court also rejected defendant's assertion of a procedurally-deficient

order, noting the order

             was decided on motion, complete with opposing papers
             filed by [p]laintiff's [c]ounsel. Plaintiff's contention is
             that she was not afforded the opportunity to object to
             the form of order. However, [p]laintiff's opposition to
             [d]efendants' motion was her objection to that form of
             order. Plaintiff failed to show that there was a "genuine
             issue [of] material fact" present, and as such
             [d]efendants prevailed in their motion for summary
             judgment.

The court also noted the order "does not abrogate any agreements between the

parties, as it merely dismisses [p]laintiff's [c]omplaint and lifts [e]xecutor

restrictions imposed by this [c]ourt. Furthermore, there has been no showing

that judicial enforcement of those agreements is necessary."


                                                                           A-2499-17T2
                                         23
      The court did not award defendants sanctions pursuant to N.J.S.A. 2A:15-

59.1, however, because this was a motion for reconsideration, "not a pleading

as required by the statute," and therefore the court did not have the authority to

do so, citing Lewis v. Lewis, 132 N.J. 541, 545 (1993). This appeal and cross-

appeal followed.

      We review a grant of summary judgment de novo, applying the same

standard as the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J.

501, 511 (2019) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

      On appeal, plaintiff argues that defendants failed to set forth a statement

of material facts in their motion for summary judgment as required by Rule 4:46-

2(a) and (b), which did not allow the court or plaintiff to identify with specificity

the purported uncontested facts supporting their motion.

      Rule 4:46-2(a) states the party moving for summary judgment

             shall . . . serve[] . . . a brief and a separate statement of
             material facts . . . [which] shall set forth in separately
             numbered paragraphs a concise statement of each
             material fact as to which the movant contends there is
             no genuine issue together with a citation to the portion
             of the motion record establishing the fact or
             demonstrating that it is uncontroverted. . . . A motion
             for summary judgment may be denied without
             prejudice for failure to file the required statement of
             material facts.

             [(Emphasis added).]

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      Here, with their motion, defendants submitted a certification that set out

many facts in sixty-one separate, numbered paragraphs with references to the

complaint and to the record. Plaintiff then responded to defendants' certification

with her own certification alleging facts in dispute. Further, the Rule indicates

a motion for summary judgment may be denied without prejudice, which

indicates dismissal on these grounds is discretionary. Because defendants set

forth facts in numbered paragraphs and cited to the record, and plaintiff had the

opportunity to and did respond, this fulfilled the purpose of a separate statement

of facts and it is difficult to see how plaintiff might have been prejudiced in any

way by it. Therefore, this argument is without merit.

      We also reject plaintiff's argument that the court's order did not comply

with the requirements of Rule 4:42-1. Here, as the court noted, the motion was

decided by it, not settled by the parties, and the order, along with its sixteen -

page statement of reasons, "accurately memorialize[d] [the] court['s]

dispositions." The court was not required to memorialize issues on which the

parties agreed separately, as those decisions were not made by the court, but

between the parties. As the court pointed out, nothing in the order interfered

with those agreements, and there was no showing that those agreements required

enforcement. Further, nothing in the rules precluded plaintiff from submitting


                                                                           A-2499-17T2
                                       25
her own proposed order containing the settled issues she wanted to be enforced,

and as the court also noted, the motion was fully briefed, there was a hearing,

and plaintiff's opposition to the motion was also her opposition to the proposed

order.

         Plaintiff further asserts material issues of fact precluded the entry of

summary judgment. Based on our review of the record, this argument is without

merit.

         Under Rule 4:46-2(c), a motion for summary judgment should be granted

where "the pleadings, depositions, answers to interrogatories and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact challenged and that the moving party is entitled to a

judgment or order as a matter of law." A genuine issue of material fact exists

where, when viewed in the light most favorable to the nonmoving party, a

rational factfinder could find in favor of the non-moving party. Brill v. Guardian

Life Ins. Co. of America, 142 N.J. 520, 523, 540 (1995). While a court ruling

should not bar a "deserving litigant" from trial, "it is just as important that the

court not 'allow harassment of an equally deserving suitor for immediate relief

by a long and worthless trial.'" Id. at 540-41 (quoting Judson v. Peoples Bank

& Trust Co. of Westfield, 17 N.J. 67, 77 (1954)).


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                                        26
      "[W]here there is a [p]rima facie right to summary judgment the pa rty

opposing the motion is required to demonstrate by competent evidential material

that a genuine issue of a material fact exists," to protect against "groundless

claims and frivolous defenses." Heljon Mgmt. Corp. v. DiLeo, 55 N.J. Super.

306, 312 (1959) (citing Robbins v. Jersey City, 23 N.J. 229, 240 (1957)). "If

this requires the non-movant to produce all his evidence, he must do so to

establish clearly the existence of a genuine issue of a material fact," especially

where the evidence is "peculiarly within the non-movant's knowledge or control

or where he has exclusive access to such proof." Id. at 313.

      It is not enough to produce "bare conclusions lacking factual support" or

"self-serving statements." Worthy v. Kennedy Health Sys., 446 N.J. Super. 71,

85 (App. Div. 2016) (citations omitted).        The non-movant must produce

"competent evidential material beyond mere speculation and fanciful

arguments." Id. at 85-86 (quoting Cortez v. Gindhart, 435 N.J. Super. 589, 605

(App. Div. 2014)).

      Although a court is not to make credibility determinations, the court is not

required "to turn a blind eye to the weight of the evidence; the 'opponent must

do more than simply show that there is some metaphysical doubt as to the

material facts.'" Triffin v. Am. Intern. Grp., Inc., 372 N.J. Super. 517, 523-24


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                                       27
(App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974

F.2d 1358, 1363 (3d. Cir. 1992)). "It is well settled that the burden of showing

that there are more assets in an estate than are acknowledged by the executors

in their inventory or account rests upon the exceptants, and that their contentions

must be sustained with reasonable certainty." Perrone, 5 N.J. at 521 (citing In

re Schlosser, 119 N.J. Eq. 201 (E. & A. 1935)).

      Here, plaintiff did not demonstrate missing assets, and her allegations are

not supported by competent evidence, but are merely self-serving statements,

speculation, and fanciful arguments not grounded in fact.            Further, her

allegations of an FBI or other investigations are unsupported, as she only

produced a telephone log showing there were two calls, one incoming and one

outgoing, between her phone number and the phone number associated with her

local FBI field office, but no indication of what, if anything, was discussed

relating to the estate. The allegations of a "sophisticated" operation where items

were "fenced" by alleged contacts of the other beneficiaries to hide their trail

are speculative and not supported by competent evidence.

      We also reject plaintiff's argument that issues related to co-executor

commissions, alleged mismanagement of the retirement accounts, Russell's




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                                       28
commission payment, plaintiff's legal fees, Snyder's fees, and the tax penalties

and interest for late tax return filing remain "wholly unresolved."

      Executors and administrators of an estate are fiduciaries acting on behalf

of the estate's creditors and beneficiaries. 7 Alfred C. Clapp & Dorothy G.

Black, N.J. Practice, Wills and Administration § 982 (Rev. 3d ed. 2019 update)

(citing In re Meyer's Estate, 63 N.J. Super. 336, 350 (App. Div. 1960)). A

fiduciary is permitted to employ and compensate accountants for services

rendered to the estate, including preparing accountings, without reduction in

commissions due the fiduciary, N.J.S.A. 3B:14-23(x). Here, plaintiff did not

produce any expert to show Snyder, a CPA, should be paid at bookkeeper rates.

Rather, his certification and billing statements appear complete and thorough,

defendants thought he did an excellent job, and plaintiff provides no support for

her position other than her own statements and opinions.

      When reviewing a fiduciary's conduct, New Jersey courts have not held

fiduciaries responsible for consequences of their actions where they do not result

from "fraud, gross carelessness, or indifference to duty." Beales, 13 N.J. Super.

at 228-29. Here, plaintiff has not shown the late tax filings were the result of

"fraud, gross carelessness or indifference to duty," and the record reflects the

late filing was a result of a misunderstanding that Bascelli would handle the


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                                       29
filing, as well as defendants' prioritization of organizing the many assets and

preparing the house for sale. Further, the tax penalties and interest prompted

defendants to change attorneys.       It appears this was at most a mistake or

imperfection of human judgment, not fraud, gross carelessness, or indifference

to duty, and summary judgment was appropriate on this point.

      As to a fiduciary's handling of investments, the Prudent Investor Act,

N.J.S.A. 3B:20-11.1 to -11.12, sets forth requirements for a fiduciary of a trust,

and a fiduciary "is not liable to a beneficiary to the extent that the fiduciary acted

in reasonable reliance on those express provisions." N.J.S.A. 3B:20-11.2. "The

prudent investor rule expresses a standard of conduct, not outcome," and

compliance "is determined in light of the facts and circumstances existing at the

time of the fiduciary's decision or action." N.J.S.A. 3B:20-11.9.

      Here, plaintiff merely disagrees with the way defendants distributed the

retirement accounts. However, defendants fulfilled their fiduciary duty under

the statute in consulting with an attorney, a CPA, Vanguard consultants, and the

Vanguard Custodial Agreement in making a decision they thought best for the

beneficiaries. While plaintiff did not like the outcome, she does not show that

defendants' conduct was improper. Nor has plaintiff produced any expert to

show the course of action taken by defendants was not reasonable, but only


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                                         30
offers a hypothetical of how she herself might have benefitted were the

distribution made her preferred way. Therefore, summary judgment on the issue

of the retirement accounts was appropriate.

      Moreover, we discern no error in the court's determination defendants

were entitled to commissions. N.J.S.A. 3B:18-14 permits commissions of 5%

on the first $200,000; 3.5% on the excess over $200,000 up to $1,000,000; 2%

on the excess over $1,000,000; and an additional 1% of the total for each

additional fiduciary. N.J.S.A. 3B:18-13 permits commissions of 6% on all

income. The accountings produced by Snyder reflect these percentages, and the

record reflects defendants performed their fiduciary duties as to the estate. As

the court noted, plaintiff did not dispute the time and effort defendants put into

administering the estate, but merely makes bald assertions that they d id it in a

way she does not agree with and makes accusations not based in fact that they

committed malfeasance. As for fees paid to Russell out of decedent's estate,

defendants provided Snyder's certification to show this was not improper, while

plaintiff again does not produce anything in response but her own statements

and opinions.




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                                       31
      Plaintiff also argues "the mediation proceeding failed and no enforceable

written or verbal agreements emerged therefrom," so the court's determination

that several issues raised by plaintiff were resolved in mediation was incorrect.

      Under Rule 1:40-6(a), the court may refer a probate action to mediation.

After Willingboro Mall was decided in 2013, if a mediation results in total or

partial agreement, to be enforceable it must be reduced to writing and signed by

each party, but does not need to be filed with the court. R. 1:40-4(i); see also

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 245

(2013).

      Here, the mediation took place in 2014, and it does not appear the

agreements as to the paintings or the tax penalties and late filing fees w ere

reduced to writing and signed by the parties. However, whether or not an

enforceable agreement resulted from mediation is not relevant, as a de novo

review of the record does not show that the issues of the paintings or the tax

penalties and interests were a result of improper exercise or neglect of

defendants' fiduciary duties that would preclude summary judgment.

      Further, a party conceding a material fact at trial may not argue the

contrary on appeal. Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.

2:6-2 (2019); First Am. v. Vision Morg., 298 N.J. Super. 138, 143 (App. Div.


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                                      32
1997); Ji v. Palmer, 333 N.J. Super. 451, 459 (App. Div. 2000). Here, plaintiff's

counsel conceded, on the record at the summary judgment hearing, that the

parties reached agreement as to the paintings and the penalties and interest for

the late tax filings, so plaintiff is precluded from arguing on appeal that those

matters remain unsettled.

      We now address both parties' claims for fees. One exception to the

American rule against awarding attorney's fees in litigation is in probate actions,

where it appears "the contestant had reasonable cause for contesting the validity

of the will," in which case "the court may make an allowance to the proponent

and the contestant . . . ." Rule 4:42-9(a)(3) (emphasis added). Counsel fees are

generally permitted "except in a weak or meretricious case."           Pressler &

Verniero, cmt. 2.3 on R. 4:42-9 (citations omitted).

      Here, plaintiff did not challenge the validity of the will, but contends she

acted to expand the assets for the benefit of all the beneficiaries. However, her

claims are not grounded in fact, and are no more than mere speculation not

supported by the record.

      In their cross-appeal, defendants assert plaintiff did not comply with Rule

4:49-2, which only permits a motion for reconsideration where there is a

palpably incorrect or irrational basis for a decision, or where the court did not


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                                       33
consider or failed to appreciate the significance of probative, competent

evidence, under D'Atria, 242 N.J. Super. at 401.          Defendants also assert

rebutting the speculative claims of the allegedly missing items (the desk, the

coin collection, and stamp collection) required time and effort, and that plaintiff

is delaying the settlement of the estate and continues to manufacture claims

against them and others to keep the litigation going, and the only way to stop

her is to impose sanctions for harassing and frivolous litigation.

      N.J.S.A. 2A:15-59.1(a)(1) states that a prevailing party in a civil action

may be awarded reasonable litigation costs and reasonable attorney fees if the

court finds "a complaint, counterclaim, cross-claim or defense of the non-

prevailing person was frivolous." As the trial court here noted, the New Jersey

Supreme Court pointed out that N.J.S.A. 2A:15-59.1 refers to only a "complaint,

counterclaim, cross-claim or defense," and "[i]n the face of such unambiguous

language, [] decline[d] to interpret the statute to apply to motions." Lewis, 132

N.J. at 545. Therefore, there are no grounds for granting defendants attorney's

fees for plaintiff's motion for reconsideration under N.J.S.A. 2A:15-59.1.

      Affirmed.




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