Opinion
DOCKET NO. A-3719-10T4
04-29-2015
STEPHEN L. GILBERT, As Permanent Guardian For And On Behalf of EDWIN O. GILBERT, Plaintiff-Respondent/Cross-Appellant, v. ELLEN HEINE, Defendant/Third-Party Plaintiff-Appellant/Cross-Respondent, and CITY OF GARFIELD, Third-Party Defendant-Respondent.
Ellen Heine, appellant/cross-respondent, argued the cause pro se. Betsy G. Ramos argued the cause for respondent/cross-appellant Stephen L. Gilbert (Capehart & Scatchard, attorneys; Stephen L. Gilbert, on the pro se brief). John W. Ferraro argued the cause for respondent City of Garfield (Bruno and Ferraro, attorneys; Robert A. Ferraro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-278-09. Ellen Heine, appellant/cross-respondent, argued the cause pro se. Betsy G. Ramos argued the cause for respondent/cross-appellant Stephen L. Gilbert (Capehart & Scatchard, attorneys; Stephen L. Gilbert, on the pro se brief). John W. Ferraro argued the cause for respondent City of Garfield (Bruno and Ferraro, attorneys; Robert A. Ferraro, of counsel and on the brief). PER CURIAM
Defendant appeals from January 24, 2011 orders dismissing her third-party claims against the City of Garfield (the "City") and requiring that she assume a mortgage or sell certain real property located in the City (the "property"). Plaintiff cross-appeals from one of the orders denying his request for carrying charges, rental income, and attorney's fees. We affirm on the appeal and cross-appeal.
Defendant filed an amended notice of appeal from a July 22, 2011 order compelling the sale of the property, and a July 25, 2011 order denying a stay of that sale. We conclude that defendant abandoned her appeal from these orders because she failed to brief any arguments relating to them. See Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001) (indicating that the failure to present an argument relating to an appeal renders that appeal "abandoned"). Even if defendant had not abandoned her appeal from these orders, we conclude that any such appeal is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
I.
We discern the following facts adduced at the bench trial. In 2004, Dr. Edwin Gilbert and defendant entered into a contract for defendant to purchase the property (the "2004 contract"). Defendant paid Dr. Gilbert a deposit, followed by payments in July and September 2006.
In January 2007, Dr. Gilbert and defendant executed a deed (the "2007 deed") transferring ownership of the property from Dr. Gilbert to Dr. Gilbert and defendant, as joint tenants with a right of survivorship. The 2007 deed was promptly recorded with the Bergen County Clerk.
In April 2007, Dr. Gilbert's health began to rapidly deteriorate. Plaintiff, Dr. Gilbert's son, became increasingly concerned about his father's judgment. In 2009, Dr. Gilbert suffered a stroke that incapacitated him. Plaintiff became Dr. Gilbert's legal guardian.
Plaintiff then discovered the existence of the 2004 contract and 2007 deed. Plaintiff also learned that there existed City maintenance violations related to the property; Dr. Gilbert had paid utilities on the property; defendant received rent from the property; the property had an outstanding equity line credit associated with it; and Dr. Gilbert owed back taxes.
Plaintiff filed this action to invalidate the 2007 deed, eject defendant from the property, and recover carrying charges, rental income, and attorney's fees. Defendant filed an answer, a counterclaim for breach of contract, and a third-party complaint against the City, alleging that the City impaired defendant's ability to transfer title by wrongfully issuing the maintenance violations. Defendant filed a motion to amend her third-party complaint seeking to add animal activist groups, alleging that the animals themselves had a right to the property because Dr. Gilbert was a veterinarian, which the court denied.
Plaintiff testified at the trial, but defendant did not. Plaintiff produced a witness who testified that Dr. Gilbert never indicated that he was selling or transferring ownership of the property, and that defendant was "going to try to get Dr. Gilbert to sign some papers" after his 2009 stroke. But one of plaintiff's other witnesses testified that Dr. Gilbert and defendant knew each other for at least thirty years and that he personally observed Dr. Gilbert execute the 2007 deed.
Defendant produced several witnesses who testified that following the 2004 contract and 2007 deed Dr. Gilbert was "very lucid and conversed the way he always did[;]" Dr. Gilbert requested a market analysis of the property in 2004; and prior to 2009, Dr. Gilbert "drove [a] car and he went and did all his shopping[.]" Other defense witnesses testified that defendant deposited rent monies into Dr. Gilbert's bank account.
The judge granted the City's motion for an involuntary dismissal of the claims against it. He found that Dr. Gilbert was competent and defendant did not exercise undue influence over him. The judge concluded that the 2004 contract and 2007 deed were valid, and he awarded title of the property to defendant.
In fashioning an equitable remedy, the judge determined that defendant was entitled to the property subject to the requirement that she satisfy the associated financial obligations of Dr. Gilbert. In meeting that requirement, the judge gave defendant the option of assuming the mortgage or selling the property. The judge concluded that plaintiff was not entitled to carrying charges, rental income, or attorney's fees.
II.
On defendant's appeal, we begin by rejecting her primary argument that the judge erred by requiring her to assume the open mortgage or sell the property to satisfy Dr. Gilbert's debt.
Our review of "[f]inal determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We will not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Ibid. (alteration in original) (citations and internal quotation marks omitted).
Here, the judge concluded that "although the 2004 contract provided for the sale of the property to [defendant], the 2007 deed placed title to the property in the names of both Dr. Gilbert and [defendant] as joint tenants with the right of survivorship." The judge reached this conclusion based on the evidence that there was a valid contract between defendant and Dr. Gilbert, and that "[w]hen [defendant], who was instrumental in the preparation of the deed, took title to the property, it was subject to an equity line mortgage. The proofs adduced at trial demonstrate that she was aware of that fact."
The judge also determined that there was no evidence that the parties to the 2004 contract contemplated that Dr. Gilbert was to be solely responsible for the satisfaction of the loan. Defendant could have testified to this fact but she did not, and the 2004 contract did not require "Dr. Gilbert [to] satisfy the loan indebtedness[.]" Therefore, the judge fashioned the remedy following the probable intent of the parties. Because defendant took "the position that the property was being conveyed to her 'as is[,]' and with knowledge that she originally took title to the property subject to the outstanding loan indebtedness, [defendant] should now be required to act promptly to secure Dr. Gilbert's discharge from that mortgage indebtedness."
We find no reason to disturb the judge's factual and legal conclusions, which are fully supported by credible evidence and are within the judge's "inherent equitable power to adjust any of the terms or conditions of the contract." Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 368 (2010). As the judge stated, "it is not fair, under the circumstances of this case, to leave . . . plaintiff in an uncertain liability position." Defendant could either satisfy the mortgage through an assumption of the mortgage, or sell the property. If the property was sold, defendant had the right to "any remaining net proceeds resulting from the sale[.]"
Defendant's remaining arguments, that the judge erred by dismissing her third-party claims against the City, denying her motion to amend her complaint, and otherwise entering orders that offended the interests of justice, are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E).
We note that although defendant contended in her brief that the judge erred by entering a May 14, 2010 order denying her motion to amend her third-party complaint to name animal rights groups, she did not list this order in her notice of appeal.
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III.
On plaintiff's cross-appeal, he contends that the judge erred by failing to award him carrying charges, damages, and attorney's fees. After reviewing the record and applying the applicable legal standards, we conclude that plaintiff's contentions are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). We add the following brief remarks.
We have long recognized that the decision to award damages "is left to the sound discretion of the trier of the fact . . . discretion based upon proof of supportive facts and circumstances." Endress v. Brookdale Cmty. Coll., 144 N.J. Super. 109, 142 (App. Div. 1976). The plaintiff must "prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Totaro, Duffy, Cannova & Co. v. Lane, Middleton & Co., 191 N.J. 1, 14 (2007) (citations and internal quotation marks omitted). As previously noted, we give deference to the trial judge's factual findings and legal conclusions unless "unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Seidman, supra, 205 N.J. at 169.
Here, the trial judge stated that although
plaintiff attempted to assert several . . . monetary claims, the [c]ourt finds an insufficient basis to grant such relief. [Plaintiff] unfortunately lacked the requisite knowledge of his father's pre-stroke financial affairs so as to effectively establish such claims. Although an inventory of the rents collected by [defendant] and/or an appropriate credit for the same was sought by plaintiff, the proofs adduced at trial tended to establish that Dr. Gilbert was aware that tenants occupied the property. Additionally[,] [a witness] testified as to rent monies that were being deposited into Dr. Gilbert's account. If Dr. Gilbert had an issue with [defendant] regarding collection or payment of these rentals he could have asserted it prior to his incapacity. He did not do so, and the proofs adduced at trial following his incapacity the [c]ourt finds insufficient to justify any award in plaintiff's favor.
Likewise, although plaintiff broadly asserted a claim at trial for a credit for carrying charges on the home, the vast majority at issue would have been incurred prior to Dr. Gilbert's incapacity. . . . Shortly after Dr. Gilbert suffered his stroke and [plaintiff] assumed the role of guardian, [plaintiff] then discontinued payment of taxes and utilities on the home. . . . Finally, while [a] claim was advanced at trial for attorney[']s fees incurred relative to defending the property maintenance violations, some of these violations again preceded Dr. Gilbert's incapacity. Regardless, following his incapacity, he was still listed as an owner of the property, was potentially liable for any claims or infractions, and the [c]ourt finds no basis, either statutory or by court rule, to shift these counsel fee costs to [defendant].
We find no reason to disturb the judge's conclusions which are supported by substantial credible evidence. Defendant produced witnesses who testified that she deposited rent money into Dr. Gilbert's accounts and that Dr. Gilbert was aware of the tenants, which plaintiff concedes. Dr. Gilbert also retained liability for the property through his continued ownership, as indicated by the 2007 deed, which further undercuts plaintiff's arguments.
Affirmed on the appeal and cross-appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION