Opposition Brief — Niles v. Parkinson

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Nos. 02-1025 and 02-1038 «MAR 10 2ga3

IN THE

Supreme Court of the United States —

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SERENA NILES,

Petitioner,

-and-

SALVATORE A. BONO,

Petitioner,

V.

GEOFFREY M. PARKINSON,

as Trustee of the Laura J. Niles Trust, and

THE LAURA J. NILES FOUNDATION, INC.,

Respondents.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE SUPREME Court OF NEw JERSEY

BRIEF IN OPPOSITION

JOHN A. RIDLEY

Counsel of Record

Bruce L. SHAPIRO

DRINKER BIDDLE & REAaTH LLP

500 Campus Drive

Florham Park, NJ 07932-1047

(973) 360-1100

Attorneys for Respondents

179522 cr

COUNSEL PRESS

(800) 274-3321 * (800) 259-6859

i

QUESTIONS PRESENTED

1. Whether a litigant in a matter pending before a state

court judge can, by filing a meritless federal suit naming the

state court judge as one among 23 defendants, and thereby

requiring the state’s attorney general’s office to appear on

behalf of the judge and obtain a dismissal of the federal suit,

force the recusal of the state court judge at the risk of creating

a viable due process claim.

2. Whether a writ of certiorari should issue in a case

in which: (a) the petitioner did not raise, and the court

below did not address, the questions presented in the petition;

(b) the decision as to which the petitioner seeks review is an

unpublished opinion with no precedential value from an

intermediate state appellate court; and (c) the judgment below

_ 1s not final as to all issues among the parties.

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TABLE OF CONTENTS

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Reasons for Denying the Petitions ..............

A. Certiorari Is Unwarranted Because Neither

the Record nor the Decision Below Raise or

Address the Questions Presented by the

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B. Certiorari Is Unwarranted Because the

Petitioners Seek Review of an Unpublished

Opinion of an Intermediate State Appellate

Court That Has No Precedential Value. ....

C. Certiorari Is Unwarranted Because the

Judgment Below Is Not Final as to All Issues

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10

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TABLE OF CITED AUTHORITIES

Page

Cases

Adams v. Robertson,

ke Beer eee re 8,9

Beck v. Washington,

RE er eee 8

Collins v. Miller,

EE ds kins sawed Sore aie es 11

Crowell v. Randell,

I OD onc ks cab cescdeneeceevers 9

Department of Banking, State of Nebraska v. Pink,

i i ee 5 vs thas epee wvesvecees 11

District of Columbia Court of Appeals v. Feldman,

NS ie eh Wg Wu WOM A bee as 8

Easely v. Cromartie,

Se) As eee 10

Jefferson v. City of Tarrant, Alabama,

SE re eee 11

McGoldrick vy. Companie Generale Transatlantige,

ee reer ee 9

iv

Cited Authorities

North Dakota State Board of Pharmacy v.

Snyder 3 Drug Stores, Inc.,

tk Be Tt: SP eeererr re errr rire

Republic of Panama v. American Tobacco Co., Inc.,

rsye & Foe foe rr rrr F

Sao Paulo State of the Federative Republic

of Brazil v. Am. Tobacco Co.,

gk Be ere eee rrr

United States Constitution

Fourteenth Amendment .......................

Statute

MUSE 4 Bs peste see

Rule

New Jersey Court Rule 1:36-3 .................

Page

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TABLE OFAPPENDICES

Page

Appendix A — Order Of The Supreme Court Of The

State Of New York, County Of Kings Dated And

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Appendix B — Notice Of Appeal Of The Defendant

Salvatore Bono To The Appellate Division Of The

Supreme Court Of The State Of New York Dated

September 12, 2001 And Filed September 13,

BOON Gbck cassie vssediereaeeen eee 4a

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STATEMENT OF THE CASE

This is a story of extreme avarice and greed on the part

of opportunists Serena Niles (hereinafter “Serena”’) and her

son Salvatore A. Bono (hereinafter “Sal”), who sought to

ravage the multi-million dollar estates of two physically and

mentally infirm octogenarians.

The Laura J. Niles Foundation, Inc. (hereinafter

“Foundation”) is the remainder beneficiary of three inter-

vivos trusts created by Laura J. Niles (hereinafter “Laura’’)

between 1992 and 1994 of which Geoffrey M. Parkinson

(hereinafter “Parkinson’’) was the trustee. Pa681a.'

Laura, a childless octogenarian who had never married,

was the heiress to a $30 million fortune. Laura’s younger

brother, Henry E. Niles (hereinafter “Henry’’), was likewise

a never-married, childless octogenarian who was the heir to

a similar size fortune. Parkinson was a life-long friend of

the Niles family, as well as Laura’s and Henry’s financial

adviser and the trustee of the trusts.

By the early 1990’s, Henry was in physical and mental

decline, to the point that he had become incontinent and had

allowed himself to be swindled out of one million dollars by

an unscrupulous broker. Because of this, a proceeding was

commenced in New York state court to have his affairs placed

in the hands of a conservator. Pa655a. Around the same time,

Serena Bono (later Serena Niles), one of the owners of a

1. For the purposes of this brief, references to the Appendix

filed in the Appellate Division of the Superior Court of New Jersey

on behalf of Geoffrey M. Parkinson will appear as “Pa__”; references

to the Joint Appendix filed on behalf of Geoffrey M. Parkinson and

The Laura J. Niles Foundation, Inc., will appear as “Ja__.”

2

local restaurant who was approximately 30 years Henry’s

junior, began spending a considerable amount of time with

him and subsequently announced that she would like to marry

him. A temporary restraining order was entered in the

conservatorship proceeding to prohibit the marriage from

taking place while the matter was pending. Pa676a. Despite

the restraining order, Serena married Henry in November,

1992. The conservator who was appointed in the New York

proceeding sought to have the marriage annulled; however,

that issue was resolved by the execution of a post-nuptial

agreement limiting Serena’s right to inherit from Henry’s

estate. Pa740a. (Following Henry’s death, Serena sued to have

the post-nuptial agreement set aside. That action eventually

settled with Serena receiving millions.)

By 1997, Laura’s health was in a fragile state; and she

required daily nursing care. She had already been diagnosed

as suffering from organic brain syndrome, rendering her

cognitively impaired, particularly with respect to making

personal and financial decisions. Parkinson, her long-time

friend and financial advisor, was by then providing advice

and services in that regard.

Serena, taking advantage of Laura’s diminished capacity,

began to insert herself into Laura’s personal decision-making

process and started a campaign of slander against Parkinson.

About that same time, Serena’s son Sal convinced Laura to

meet with a law firm selected by him. The upshot was that in

1997 Laura signed a series of complex testamentary papers

that made profound changes to her estate plan, including,

inter alia, discharging Parkinson as her trustee and installing

Sal in his place; revoking her Last Will and Testament and

replacing it with an instrument making two million dollars

in specific bequests to Sal’s family, including his mother,

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Serena; completely disinheriting the Foundation; and

diverting the entire residuary estate to a new foundation

controlled by Sal, Serena, and their business associates.

Pal019a-1092a.

Parkinson and the Foundation filed actions in the

Superior Court of New Jersey, Chancery Division, Probate

Part, Warren County, to invalidate the testamentary

instruments executed by Laura in 1997 on the grounds that

they had been procured through the undue influence of Serena

and Sal. Pala, 37la, 394a. The presiding judge was the

Honorable Harry K. Seybolt of the Superior Court of New

Jersey. At an early point in the proceeding, Judge Seybolt

appointed Michael S. Selvaggi, a Warren County attorney,

to act on Laura’s behalf as her guardian ad litem.’ Pa2a.

Parkinson and the Foundation ultimately prevailed in

the trial court, which removed Sal as trustee, invalidated the

1997 testamentary papers thereby restoring Laura’s prior Last

2. On pages 10-11 of Serena’s petition and on page 8 of Sal’s,

they claim that Parkinson had Mr. Selvaggi appointed through an

ex parte proceeding with the court. That claim is patently false, and

no evidence has ever been adduced to support it. Mr. Selvaggi was

selected by the court. Parkinson, who lives and works in Connecticut,

had never heard of Selvaggi prior to his appointment.

3. Serena and Sal also claim at pages 11 and 8, respectively,

that 18 witnesses submitted affidavits stating that Selvaggi’s report

to Judge Seybolt misquoted them and falsified statements attributed

to them. After our repeated and unanswered calls to produce the

16 alleged affidavits that are not in the record, counsel for Sal filed

with this Court and served a notice of errata purporting to correct

that misstatement, stating: “[a]t least two witnesses submitted ...

affidavits . . .” The fact of the matter is that only two such affidavits

are part of the record or have ever been seen.

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Will and Testament and the trusts, restored Parkinson as

the trustee, and assessed damages against Serena and Sal.

Pa498a, 550a. The judgment against Sal was ultimately by

default. In his opinion, Judge Seybolt stated: “It is this Court’s

conclusion that there is no clearer case of undue influence

than the one presently before this Court.” Pa536a.

Judge Seybolt’s decision to enter default against Sal was

made after a full year of rampant and unrepentant litigation

abuses by Sal — conduct that included defiance of court

orders, refusal to provide crucial discovery, and, ultimately,

failure to appear at trial. Ja97a-110a. Some of the “highlights”

of Sal’s misbehavior during the litigation include his:

¢ Sending a series of pro se letters to the trial

court teeming with factually baseless and

highly tendentious accusations of “corruption”

and “bias” against his adversaries, his own

lawyers, and Laura’s court-appointed guardian

ad litem.Pa304a, 315a, 319a.

* Refusing to furnish “family videotapes” of

Laura, which he admitted existed and which

would have been relevant to the trial court’s

findings of fact concerning Laura’s mental

Capacity.

¢ Walking out of the hearing on his accounting

for his service as Laura’s fiduciary after two

and a half days of evasive and unresponsive

testimony. Jal15a. Sal simply walked out of

the proceeding, never to return. Instead, he

filed a 303-page “RICO” complaint in the

United States District Court for the Eastern

District of New York, naming as defendants

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the attorneys for Serena’s adversaries in the

New York litigation concerning Henry’s estate;

all of the attorneys representing adversaries

in the New Jersey action; court appointed

individuals in both the New York and New

Jersey actions; discharged attorneys who had

previously represented him in the New Jersey

action; and various court officials — most

notably, Judge Seybolt. Pa417a, Ja69a.

¢ Moving in the trial court for Judge Seybolt to

recuse himself on the basis of Sal’s having

named him a defendant in the RICO action.

Ja96a.

The RICO action was dismissed in a 42-page Memorandum

and Order entered by United States District Judge Thomas

C. Platt. Pa570a. Judge Seybolt was represented in that

action by the New Jersey Attorney General’s office, which

moved for dismissal on the basis of judicial immunity and

merely sent a letter to the court adopting the arguments of

the other defendants moving for dismissal on the merits of

the RICO action. With respect to Sal’s specific claims against

Judge Seybolt, Judge Platt ruled that the United States District

Court lacked subject matter jurisdiction and was without

authority to review decisions as to state court proceedings

pursuant to the Rooker-Feldman Doctrine, as well as the

Eleventh Amendment to the United States Constitution.

Pa583a-587a. Further in his opinion, Judge Platt stated that

Judge Seybolt was absolutely immune from Sal’s allegations

based on the doctrine of judicial immunity. Pa605a-606a.

While discussing the Abstention Doctrine as another reason

4. Serena was never a party to the RICO action.

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for dismissing Sal’s claims against Judge Seybolt, Judge Platt

stated: “Plaintiff does not allege facts which support his claim

that Judge Seybolt is biased against him, but rather his only

basis for this charge is the existence of rulings adverse to his

position in the New Jersey action.” Pa587a. Sal took no

appeal from that dismissal.

Serena and Sal appealed Judge Seybolt’s decision to

the Appellate Division of the New Jersey Superior Court

(hereinafter “Appellate Division”), arguing, inter alia, that

Judge Seybolt was biased against them. In doing so, they

relied on the New Jersey Code of Judicial Conduct, the

federal recusal statute, and New Jersey Court Rules. They

never raised the issue of Fourteenth Amendment violations.

Parkinson and the Foundation cross-appealed on issues of

damages. The Appellate Division affirmed Judge Seybolt’s

judgment in its entirety, noting in its opinion that: “The trial

judge exercised remarkable restraint throughout and

displayed a clear and constant intent to provide Salvatore

ample and adequate opportunity to be heard.”

Serena and Sal then petitioned the New Jersey Supreme

Court for certification of the issues that had been appealed

to the Appellate Division. Parkinson and the Foundation

cross-petitioned on issues of damages. The New Jersey

Supreme Court denied Serena’s and Sal’s petitions but

granted Parkinson’s and the Foundation’s cross-petition.

Oral argument is scheduled to take place on March 17, 2003.

Neither Serena nor Sal posted a supersedeas bond

with the trial court to stay execution of the judgment during

the appellate process. Accordingly, the judgment was

domesticated in New York, where both Serena and Sal are

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residents. Execution was effected against Serena for the

amount for which she was adjudged liable. Sal, on the other

hand, has appealed an order of the Supreme Court of the

State of New York, Kings County, that amended a prior order

of that court to reflect properly the damages levied against

him by Judge Seybolt (App. A1); and the matter is now before

the Appellate Division of the Supreme Court of the State of

New York, Second Department (App. A4).

For a more exhaustive recitation of the facts of this case,

the Court’s attention is respectfully invited to the per curiam

opinion of the Appellate Division at pages A3 through A75

of Salvatore A. Bono’s petition.

REASONS FOR DENYING THE PETITIONS

The petitions for writ of certiorari should be denied for

three discrete reasons.°

A. Certiorari Is Unwarranted Because Neither the

Record nor the Decision Below Raise or Address the

Questions Presented by the Petitions.

In reviewing state court judgments undex 28 U.S.C.

§ 1257, this Court adheres to the general rule that it will not

consider a petitioner’s federal claim unless it was either

addressed by or properly presented to the state court that

5. Although the issue of whether or not the trial judge should

have recused himself is best left to a merits brief, we are obligated to

point out that the petitioners rely on Republic of Panama v. American

Tobacco Co., Inc., 217 F.3d 343 (Sth Cir. 2000) in support of their

arguments for recusal. This Court reversed that case sub nom.,

Sao Paulo State of the Federative Republic of Brazil v. Am. Tobacco

Co., 535 U.S. 229 (2002).

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rendered the decision for which the petitioner seeks review.

Adams v. Robertson, 520 U.S. 83, 86 (1997). If the highest

state court was silent on the federal question presented to

this Court, the assumption is that the issue was not properly

presented below. /d.; District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 482 n.16 (1983).

Serena never raised the issue of due process in her appeal

to the Appellate Division or in her petition for certification |

to the New Jersey Supreme Court. The sole issues that she

raised in those courts were: (1) that she should not have been

stripped of a condominium in Florida that the trial court found

she had acquired from Laura as a result of undue influence;

and (2) that she should not have been assessed surcharges,

fees, and damages by the trial court. Neither her appeal nor

her petition in the New Jersey state courts ever mentioned

an issue with which this Court should be concerned.

In his appeal to the Appellate Division and in his petition

for certification to the New Jersey Supreme Court, Sal

mentioned the “Fourteenth Amendment” and made vague

claims of his being deprived of “due process rights” as the

result of adverse rulings by the trial court. Other then

complaining that New Jersey law was being misapplied,

he did not mention or argue that the trial court’s rulings were

unconstitutional under the Due Process clause. As this Court

stated more than 40 years ago: “We have said time and again

that the Fourteenth Amendment does not ‘assure

uniformity *** of judicial decisions *** (or) immunity from

judicial error ***’ [Citation omitted.] Were it otherwise,

every alleged misapplication of state law would constitute a

federal constitutional question.” Beck v. Washington, 369 U.S.

541, 554-55 (1962).

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Significantly, the Appellate Division did not address Sal’s

vague utterances concerning “due process”; and the New

Jersey Supreme Court denied his petition for certification.

It must therefore be assumed that he did not present the issue

properly. Adams v. Robertson, supra at 86; see also, Crowell

v. Randell, 35 U.S. 368 (1836), wherein Justice Story stated:

In the interpretation of this section of the act of

1789, it has been uniformly held, that to give this

court appellate jurisdiction two things should have

occurred and be apparent in the record: first, that

some one of the questions stated in the section

did arise in the court below; and secondly, that a

decision was actually made thereon by the same

court, in the manner required by the section.

if both of these do not appear on the record,

the appellate jurisdiction fails.

Id. at 392.

This Court, in exercising its appellate jurisdiction,

will consider questions not pressed or passed upon in

the courts below only in exceptional cases that come

from the federal courts. McGoldrick v. Companie Generale

Transatlantige, 309 U.S. 430, 434 (1940). This case,

of course, comes from the New Jersey state courts. This Court

should therefore not depart from this practice in the exercise

of its appellate jurisdiction.

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B. Certiorari Is Unwarranted Because the Petitioners

Seek Review of an Unpublished Opinion of an

Intermediate State Appellate Court That Has No

Precedential Value.

New Jersey Court Rule 1:36-3 provides in pertinent part:

“No unpublished opinion shall constitute precedent or be

binding upon any court.” Accordingly, other New Jersey

courts considering issues similar to those below may possibly

reach different conclusions, especially since the finding of

undue influence on the part of Serena and Sal turned so much

on issues of fact.

“Where an intermediate court reviews, and affirms,

a trial court’s factual findings, this Court will not ‘lightly

overturn’ the concurrent findings of the two lower courts.”

Easely v. Cromartie, 532 U.S. 234, 242 (2001). The Appellate

Division affirmed the judgment of the trial court only after

an exhaustive review of the trial court’s factual findings.

The petitioners have not presented reasons why this Court

should revisit those findings.

Given the fact intensity of the issues of which the

petitioners complain and the absence of precedential effect

of the decision below upon any other case or controversy,

there is no reason why this Court should grant certiorari.

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C. Certiorari Is Unwarranted Because the Judgment

Below Is Not Final as to All Issues Among the Parties.

This Court’s ability to review state court decisions is

limited to final judgments rendered by the highest court of

that state. Jefferson v. City of Tarrant, Alabama, 522 U.S.

75, 77 (1997). This principle serves the purpose of preventing

piecemeal review of state court decisions. North Dakota State

Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S.

156, 159 (1973). All rights must be fully adjudicated,

and the adjudication should not be subject to further review

by a state court. Department of Banking, State of Nebraska

v. Pink, 317 U.S. 264, 268 (1942). “[T]he rule requires

that the judgment to be appealable should be final not only

as to all the parties, but as to the whole subject-matter and

as to all the causes of action involved.” Collins v. Miller,

252 U.S. 364, 370 (1920).

The rights and obligations among the parties to this case

are currently under review in the appellate courts of two states.

The cross-appeal of Parkinson and the Foundation on issues

of damages is currently before the New Jersey Supreme Court

and scheduled for oral argument. Following the domestication

in New York of the judgment of the New Jersey trial court,

Sal has appealed the amount of the New Jersey judgment to

the Appellate Division of the New York Supreme Court.

Given his history in these proceedings, it is likely that

Sal will again petition this Court to review the matters

currently under consideration by the New Jersey and New

York appellate courts should they rule against him. Likewise,

if Serena remains true to form, she will follow suit.

Accordingly, neither petition is ripe for certiorari.

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CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted,

JOHN A. RIDLEY

Counsel of Record

Bruce L. SHAPIRO

DRINKER BIDDLE & REATH LLP

500 Campus Drive

Florham Park, NJ 07932-1047

(973) 360-1100

Attorneys for Respondents