SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 16T1 FRANCES RICHBURG (deceased),
Plaintiff

- Appellant,

v. ESTATE OF ROY RICHBURG , Defendant

- Respondent.

Argued October 11, 2018

– Decided November 2 , 2018 Before Judges Koblitz, Currier, and Mayer. On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C

00 0074

- 15. Brian T. Flanagan argued the cause for appellant ( Vyzas & Associates, PC , attorneys ; Vincas M. Vyzas , of counsel; Brian T. Flanagan, on the brief). Respondent has not filed a brief.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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In this action to quiet title, plaintiff Frances Richburg sought to set aside the deeds transferring title to Frances's son , 1 defendant, Estate of Roy Richburg , 2 for a property located in Jersey City (property)

. Frances alleged that prior to Roy's death, he obtained the p r o pe rty through " forgery, fraud , undue influence "
and in a de qu ate consideration. Following Frances's death , her daughter, Martha Richburg Bolding, on leave granted by the trial court, filed an amended complaint in her capacity as the individual plain t iff and the co

- executor of her
mother's estate. After learning there was a newly filed probate action in Kings County,
New York regarding Frances's will, t he Chancery court dismissed this action on forum non conveniens grounds. A rev iew of the record and applicable principles
of law constrain us to reverse the court's order as there is no other viable
alternative forum in which plaintiff may seek recovery.
Frances's husband , Allan, died intestate in 1992 , and was survived by
Frances and their six children

. At the time of his death, Allan held title to the property. Frances was the a dministrator of Allan's e st at e but i t wa s not settled

1 We use the parties' first names for the ease of the reader as they all share a common last name.

2 Roy passed away prior to the institution of Frances' s suit.3 A

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prior to her death in 2015. Both Frances and Allan were New York residents at
the time of their d eaths. In April 2016, an action was filed in Kings County to appoint a new administrator for Allan's estate. Although several c ase management orders were executed in this ac tion , no d iscovery had taken place following Frances's death , because no one had
authorization to approve or res p ond to disc o very demands. Upon Martha 's substitution as plaintiff, her counsel determined that Allan may have owned the property exclusively and not in common or by the e ntire t y with Fran c es, as was previously thought. As a result, Martha presented orders to show cause for her appointment as temporary administrator ad litem for both of her p a rents' estates
in this action.
On the order to show cause return date , the Chancery judge referred to a
letter sent to him from defen dant's counsel, not in opposition to plaintiff's application , but instead providing information about the probate of Frances's

w ill in Kings County, Ne w York. 3 Counsel also attached Frances's w ill. During

3 Defendant advised a petition to probate Frances' s w ill had been accepted and docketed but no further action had occurred.4 A

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the hearing, defenda n t's counsel referred to the "telephon e conversation" he had
with the judge , who told him to b r in g certain papers to the hearing

. 4
T he judge ackno wl edged the only application before him was Martha's appointment as a limited administrator to prosecute the quiet title action on behalf of her parents' e states , and that it was unknown if Frances's will would
be contest ed in New York

. N evertheless , the judge declared Frances's co u nty
of residence was "the convenient forum for a resolution of the allegat io n s that
are raised in this docket number." The judge also told plaintiff she h ad "significant issues of proof " to overcome on this issue.
Plaintiff reminded the court there wer e two applica tions before it; Martha
also so ught the temporary a d ministration of Allan's e state , which was not affected by any potent ial probate action c on cerning Frances's w ill in New York. Furthermore, the Chancery action involved i nter vivos transfers pertaining to the property located in New Jersey

. Notwithstanding, t he judge ga ve counsel two
weeks 5 to brief the issue of forum non conv e ni e ns , stat ing : "Unless you convince me otherwise, this case will be dismissed without prejudice to the he i r s of

4 These papers were not previously submitted to the court.

5 The order gave plaintiff one week to file h er papers.5 A

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Frances Richburg pursuing wh a te v er claims they may h ave in the forum of Kings C ounty, whether it ' s a Surrogate court or some other court." Prior to the next hearing, the ju d ge's law clerk emailed counsel r e qu e sting
defe nd ant obtain a certification from t h e attorney handling the probate matter in Kings C ounty advising of that action's status

. No certification was ever provided. During oral argument in November 2016, plaintiff asserted the Chancery matter involved a dispute about a deed to a New Jersey property, disti n c t from any dispute that might occur regarding Frances's will in New York. In addition,
counsel advised the statute of limitations in New York governing a quiet title
acti o n was ten years. Therefore, plaintiff's action was barred in New York as the claims pertained to deeds executed in 1997 and 2004. New Jersey's applic able statute of limitati o ns was twenty years and plaintiff had filed her
action well within th a t timeframe. Plaintiff cited to Gantes v. Kason Corporation , 145 N.J. 478, 499 (1996) , and argued, under its holding, that a
court should not dismiss a case on forum non c onvenie n s grounds if a plaintiff
will be left without a forum to seek recovery.
In a November 30, 2016 written statement of reasons, the Chancery judge
conducted a forum n on conveniens analysis , weighing the public and private6 A

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factors under D'Ag o stino v. Johnson & Johnson , Inc. , 225 N.J. Super. 250, 263 (App. Div. 1988), and determined New York was the proper venue for this
action. The judge explained that "this case is in trinsically intertwined with the actions pending in Kings County Surrogate's Court [because] . . . [t]here would be identical issues, albeit over different timeframes[,] of [ ] undue influence and
fraud." In addressing Martha's argument that New York's st atute of limitations
would bar her from recovery, the judge posited that "equit ab le principles may apply" to permit plaintiff to bring her action in New York. The complaint was dismissed without prejudice.
Plaintiff argues on appeal that the Chancery court erred i n dismissing the
acti o n on f o r um non convenie n s grounds as defendant did not meet its burden to justify a dismissal and the court's order divests plaintiff of any viable forum in which to pursue her action. Because of the substantial likelihood there is no other forum in which Martha may seek recovery, we reverse.
The doctrine of forum non conveniens "is equitable in nature and, therefore, decisions concerning its application ordinarily are left to the sound
discretion of the trial court." Kurzke v. Nissan Motor Corp. in U.S.A

. , 164 N.J. 159, 165 (2000) (citations omitted). When a court granting a forum non
conveniens dismissal "misconceives the applicable law

. . . de novo review is7 A

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required because the [trial court's] exercise of the legal discretion lacks a foundation and becomes an arbitrary act[.]" Paradise Enter.'s Ltd. v. Sapir , 356 N.J. Super. 96, 102 (App. Div. 2002) (alteration in original) (citations and
int ernal quotation marks omitted). "When this occurs it is the duty of the reviewing court to adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided." Ibid

. Under New Jersey law, "[t]he general rule in a forum n on conveniens analysis favors retention of jurisdiction , unless the forum is manifestly inappropriate ." Amn. Home Prods. Corp. v. Adriatic Ins. Co. , 286 N.J. Super. 24, 35 (App. Div. 1995). Furthermore, our Supreme Court has cautioned "if the
transfer w ill result in significant hardship to the plaintiffs" a court " may not
dismiss the action under the doctrine of forum non conveniens

. " Gantes , 145
N.J. at 499

. In Gantes , the Court found the plaintiff had demon strated a significant hardship sufficient to avert the dismissal of the New Jersey suit where the claims
were time barred under the alternat iv e state's statute of repose. Ibid. "[W] here the plaintiff will be so adversely affected by the transfer of jurisdiction, the court may not dismiss the actio n under the doctrine of forum non conveniens

. " Ibid.
See Yousef v. Gen. Dynamics Corp. , 205 N.J. 543 , 559 (2011) (adopting8 A

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Gantes 's significant hardship rule and denying the forum non conveniens
dismissal motion in a personal injury case where the accident occurred in South Africa but the plaintiffs resided and worked in New Jersey); see also Greely v. Greely , 194 N.J. 168 , 177 (2008) (acknowledging Gantes 's significant hardship rule in rejecting the plaint iff's forum non conveniens claim in a child custody case). New Jersey has a twenty

- year statute of limitations to recover title to real

estate. See N.J.S.A. 2A:14

- 6 to

- 7. In New York, a ten

- year statute of
limitations governs actions to "quiet title" to real property. See N.Y. C.P.L.R. § 212(a) . Here, the deeds Martha seek s to set aside are dated 1997 and 2004. This action was filed in New Jersey in 2015, within the twenty

- year statute of limitations. However, th e action w ould be untimely if filed in New York and
Martha , therefore, w ould be denied recovery. As a result, the trial court erred in dismissing the suit on forum non conveniens grounds. We briefly address the issue of burden of proof. We have stated that t he
doctrine of forum non conv e niens is premised on the principle "that a court may dismiss a case when the forum selected by a plaintiff

— despite the existence of jurisdiction and venue

— is so inconvenient that it would be unfair to the
defendant to conduct its defense of the claim i n that location." Varo v. Owens

-9 A

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Ill inois Inc. , 400 N.J. Super. 508, 518 (App. Div. 2008). "[T]he entity invoking
the doctrine . . . bears the burden of establishing that New Jersey is not a convenient forum for this litigation." In re Vioxx Litig. , 395 N.J. Super. 358,
364 (2007) (citing Piper Aircraft Co. v. Reyno , 454 U.S. 235, 255 (1981)).
"O nce a court of competent jurisdiction entertains the action, only a strong showing of very great hardship upon defendant will defeat further proceedings
in the forum

. " Amercoat Corp. v. Reagent Chem. & Research, Inc. , 108 N.J. Super. 331, 346 (App. Div. 1970)

. Here, defendant did not file a motion to dismiss the New Jersey action on
forum non conveniens grounds

. Instead, after a letter and telephone call wit h defendant's counsel, the court raised the issue sua sponte and improperly placed
the burden on Martha to retain jurisdiction in New Jersey. As a result, defendant has not shown "a very great hardship" requiring a dismissal of the action. Although the C h ancery court found the probate and title acti o ns were "intertwined," requiring prosecution of the action in New York, New Jersey is
the o n ly state that can adjudicate ti t le to the property. Higginbotham v. Higginbotham , 92 N.J. Super. 18 , 33 (App. Div. 19 66) ("[I] t is universally held that a court of one state cannot directly affect or determine the title to land in
another state .") (citations omitted). Furtherm ore, the fact that witnesses reside10 A

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in Brooklyn and other parts of New York does not establish that Frances's choice
of f or um was "demonstrably inappropriate ." See Chubb Custom Ins. Co. v.
Prudential Ins. Co. of Am. , 394 N.J. Super. 71, 81

- 82 ( App. Div. 2007) (reversing trial court's forum non conveniens dismissal as abuse of discretion
because the balance of factors did not favor defendant, and plaintiff was entitled to deference in choice of forum)

. At the time of the Chancery court's order, defendant had on ly presented
information that F rances's will had been submitted to probate in Kings County.
There wa s no evidence the will would be contested. Although the judge requested defendant provide a certification from New York probate counsel, it

was n ever supplied

. Furthermore, t he issues in the Chancery acti o n w e re dis tinct from any that might be presented in a will conte s t. Here, plaintiff sought a determination as to who rightly held title to the property before Frances died, not a decision as to who inherited the property aft er Frances's death. Without any other available forum to make the property title determination, and no
demonstrable "very great hardship" to defendant, the action was properly venued in New Jersey. Reversed and remanded for further proceedings. We do not retain jurisdiction.