Opinion
DOCKET NO. A-4087-11T1
03-17-2014
IN THE MATTER OF EDWIN O. GILBERT
Ellen Heine, appellant/cross-respondent pro se. Stephen L. Gilbert, respondent/cross-appellant pro se.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. 180454.
Ellen Heine, appellant/cross-respondent pro se.
Stephen L. Gilbert, respondent/cross-appellant pro se. PER CURIAM
In this quiet title action, appellant/cross-respondent Ellen Heine appeals from a March 6, 2012 order dismissing without prejudice her application in the Probate Part of the Chancery Division in Ocean County to remove a quitclaim deed filed in Bergen County. We affirm.
In 2007, Edwin Gilbert (Edwin), transferred an interest in real property he owned in Garfield, Bergen County, to Heine, so that they owned the property as joint tenants. In January 2009, Edwin suffered a stroke that rendered him incapacitated. On July 27, 2009, the Ocean County Probate Part appointed Edwin's son, respondent/cross-appellant Stephen Gilbert (Gilbert), as Edwin's guardian. Heine appealed this appointment and we affirmed in an unpublished opinion. In re Gilbert, No. A-1119-09 (App. Div. October 26, 2010).
In August 2009, Gilbert filed a quiet title action regarding the Garfield property in the Chancery Division in Bergen County. Gilbert claimed that Heine paid no consideration or paid inadequate consideration for her share of Edwin's property and that she exercised undue influence on Edwin to induce him to transfer an interest in the property to her.
On May 10, 2010, Heine filed a motion in Ocean County to require Gilbert to return Edwin to New Jersey from New Mexico where he now lived. On August 12, 2010, the Ocean County Probate Part denied Heine's motion. She appealed. While the appeal was pending, Edwin died. Accordingly, on October 6, 2011, we dismissed the appeal as moot. In re Gilbert, No. A-0415-10 (App. Div. October 6, 2011). The Supreme Court thereafter denied Heine's petition for certification. In re Gilbert, 209 N.J. 233 (2012).
On November 10, 2010, Gilbert executed a quitclaim deed to sever the joint tenancy on the Garfield property. On December 2, 2010, Gilbert recorded the deed in Bergen County.
Following a ten-day trial, Judge Harry Carroll issued a written decision and order on January 24, 2011 in the quiet title action. The judge held that: (1) there was a valid contract for the sale of the property; (2) Heine paid adequate consideration; and (3) the evidence did not establish that Edwin's actions were the product of undue influence. Judge Carroll ordered Heine to assume the mortgage on the property within ninety days, and "remove any obligation of" Edwin. If Heine did so, she would own the property in fee simple. However, if Heine was not able to assume the mortgage, the property was to be sold, with Heine retaining the net sales proceeds after the mortgage was satisfied. Heine appealed the January 24, 2011 order and that appeal is currently pending.
Docket No. A-3719-10.
Heine failed to either assume or satisfy the mortgage as required by the January 24, 2011 order. Instead, she filed a motion in the Ocean County Probate Part seeking "an order to remove the Quitclaim Deed dated November 10, 2010, by Edwin O. Gilbert in Bergen County . . . ." Gilbert opposed Heine's request, arguing that any motion regarding the Garfield property had to be filed in the Chancery Division in Bergen County. Following oral argument, Judge John Peterson, Jr. ruled that the Ocean County Probate Part did not have jurisdiction to consider Heine's motion. The judge explained that
it is clear there are issues that both parties admit and acknowledge took some ten days of trial before another Judge, Judge Carroll, in Bergen County. That's the location of the real estate, the property in question, and that's the jurisdiction from which applications had been made, motions had been filed and then a trial had taken place as to a quiet title action. That would be clearly the starting off place for anyone seeking to file actions with regard to that title.Thus, on March 6, 2012, the judge denied Heine's motion without prejudice to her pursuing her claim in Bergen County. This appeal followed.
On appeal, Heine argues that the Ocean County Probate Part should have exercised jurisdiction over her motion to remove the quitclaim deed from the Garfield property. We disagree. Rule 4:3-2(a) provides that "[v]enue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or a possessory or other interest therein, or for damages thereto, or appeals from assessments for improvements, in the county in which any affected property is situate[.]" Here, the Garfield property was located in Bergen County and, therefore, the Rule required Heine to file her motion in Bergen, rather than Ocean, County.
Moreover, by the time Heine filed her motion in Ocean County, her appeal from the January 24, 2011 order in the Bergen County quiet title action was already pending before us. "The ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995). Pursuant to Rule 2:9-1, however, Bergen County would have continuing jurisdiction during the pendency of Heine's appeal to enforce the January 24, 2011 order, including, had Heine filed her application in Bergen County as required, a request to remove the quitclaim deed. Therefore, we perceive no basis for disturbing Judge Peterson's decision to deny Heine's motion without prejudice to her filing it in Bergen County, which was clearly the only appropriate venue for it.
Gilbert filed a cross-appeal from the March 6, 2012 order and asks that we declare the quitclaim deed valid. However, he does not address this issue in his appellate brief and, therefore, his arguments concerning the March 6, 2012 are "deemed waived." Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App Div.), certif. denied, 169 N.J. 606 (2001).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION