DALISAY DELGADO v. FATIMA C. PAGNILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2131-05T32131-05T3

DALISAY DELGADO,

Plaintiff-Respondent,

v.

FATIMA C. PAGNILLO,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 27, 2006 - Decided October 24, 2006

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Chancery Division, Special Equity

Part, Hudson County, Docket No. C-89-03.

Robert M. Mayerovic, attorney for

appellant.

Lawrence A. Leven, attorney for

respondent.

PER CURIAM

Judge Olivieri partitioned a two family home in Jersey City between two disputing tenants-in-common, plaintiff Dalisay Delgado and defendant Fatima Pagnillo. Because the judge found defendant's interest to be "nominal," he declined to order a sale of the house and instead directed defendant to convey her interest to plaintiff in exchange for $5,000. Defendant appeals, contesting the valuation of her interest and the court's failure to credit her contention that plaintiff had illegally locked her out of the home. We affirm.

The parties, two former friends, both grantees on the deed to the house in question, vigorously dispute the underlying facts. Basically, plaintiff testified that defendant participated in the mortgage acquisition, as co-borrower, solely to facilitate the loan as an accommodation to plaintiff. Plaintiff claimed that in exchange for $300 per month, defendant was to be permitted unrestricted access to the basement of the house for storage. Plaintiff further testified that defendant agreed that after two years, she would convey her interest to plaintiff so that the mortgage could be refinanced and defendant's name removed from the document.

In direct conflict with plaintiff's story, however, defendant testified that the parties agreed to purchase and own the house "fifty-fifty." According to defendant, each woman was to possess half of the basement and one of the two floors.

Whatever deal the parties reached fell apart about fifteen months later when defendant refused to cooperate with plaintiff's refinancing of the property. Defendant would not transfer title to plaintiff unless she was paid fifty-percent of the property's equity. Consequently, plaintiff sued defendant in the trial court.

In that court, Judge Olivieri conducted a bench trial and essentially found that though defendant was a co-owner of the property, she did not contribute to the purchase or maintenance of the home and did not reside there. The judge, therefore, concluded that defendant was on the deed as an accommodation, that her interest was "nominal," and that the $300 she paid plaintiff monthly was only for the storage of defendant's personal property in the basement.

On appeal, defendant claims that "the clear and convincing standard does not support the trial decision terminating [her] tenant in common status" and that the judge "did not properly address [her] equity and other considerations in the acquisition of the property." In large degree, these appeal points typify defendant's misunderstanding of Judge Olivieri's decision.

The judge bifurcated the trial, first addressing plaintiff's complaint demanding "judgment declaring plaintiff to be the sole owner of the property," and then addressing defendant's counterclaim essentially seeking partition of the parties' tenancy-in-common. In the first part of the trial, where plaintiff sought to remove defendant's name from a solemn and formal document that we have used for hundreds of years to transfer real property, the judge correctly noted that plaintiff "must offer proofs that are clear and convincing." See Rogo v. Mahway Realty Co., 20 N.J. 527, 532-33 (1956); Quigley, Inc. v. Miller Family Farms, Inc., 266 N.J. Super. 283, 295-96 (App. Div. 1993); Antonucci v. Gravina, 134 N.J. Eq. 79, 85 (Ch. 1943).

Because the judge found both parties' lacking in credibility regarding various parts of their testimony, he concluded that plaintiff failed to meet the clear and convincing burden of proof. Instead of altering the deed, the court found that a tenancy-in-common was created and each party, therefore, owned an undivided portion of the whole property. Mandelbaum v. Weiss, 11 N.J. Super. 27, 30 (App. Div. 1950). Plaintiff did not appeal from this determination, and thus, we have no cause to review this portion of the judge's decision, finding that the parties held title as tenants-in-common.

In the second part of the case, the judge considered that since defendant was a tenant-in-common, "partition may normally be had as of course." Baker v. Drabik, 224 N.J. Super. 603, 608 (App. Div. 1988) (quoting Newman v. Chase, 70 N.J. 254, 261 (1976)); Gery v. Gery, 113 N.J. Eq. 59, 64 (Ch. 1932). For tenants-in-common, there is a presumption of equal ownership. Asante v. Abban, 237 N.J. Super. 495, 498 (Law Div. 1989). However, that presumption can be rebutted by evidence that the cotenants intended otherwise. Reitmeier v. Kalinoski, 631 F. Supp. 565, 572 (D.N.J. 1986). See, e.g., Aronow v. Silver, 223 N.J. Super. 344, 351 (Ch. Div. 1987).

We conclude that the clear and convincing burden of proof is not necessary when determining the method of partition and valuation of the co-tenants' interests. See Swartz v. Becker, 246 N.J. Super. 406, 411 (App. Div. 1999) ("General rules governing burden of proof apply in partition actions."). Resolution of these issues may affect the ownership of real property and overturn the presumption of equal value for co-tenants. However, parties taking title as tenants-in-common should understand that any dispute over the property may result in partition and valuation. These consequences are known and inherent in such a title status. Therefore, we do not believe that the underlying public policies involved are sufficiently weighty to warrant the clear and convincing burden of proof. See Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct. 1388, 1396, 71 L. Ed. 2d 599, 608 (1982); State v. Sugar, 100 N.J. 214, 239-40 (1985); In re Polk, 90 N.J. 550, 563 (1982); State v. Sheppard, 197 N.J. Super. 411, 440-41 (Law Div. 1984). See also N.J.R.E. 301 cmt. 9. But See, e.g., P & M Enters. v. Murray, 293 N.J. Super. 310, 312 (App. Div. 1996) (requiring "only the clearest and most convincing evidence" to overcome the presumption of invalidity of an attorney's transactions with a client.)

In our view, the second part of N.J.R.E. 301, which speaks of evidence "tending to disprove the presumed fact," makes clear that the evidence necessary to rebut a presumption must simply be strong enough so that reasonable persons would differ as to whether the presumed fact could be found. Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.), certif. denied, 56 N.J. 479 (1970). Thus, all that was necessary in this case to rebut the presumption of equal valuation was for plaintiff to create "a genuine issue of fact" as to the existence of the presumed fact. Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445, 460 (App. Div.), certif. denied, 134 N.J. 466 (1993). Once the procedural effect and consequences of the presumption are rebutted, then the valuation decision need only be supported by a preponderance of the evidence, the usual standard in civil cases. State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994).

In the second part of the case, Judge Olivieri found defendant's title interest to be less valuable than plaintiff's. The court found that "the documentary evidence corroborates the fact that this house was maintained by and all the efforts to keep this house going were made by [plaintiff], with absolutely no contribution from [defendant] other than a $300 dollar per month payment for rent for 24-7 access to the basement for her items." Even though the judge believed that plaintiff was not completely credible, "there are invoices, there are checks that show, and it is un-contradicted, that she paid what she paid and carried the subject property through several years." Plaintiff paid every mortgage payment, which included insurance and taxes, every water and sewage payment, all upkeep, maintenance, and repair bills, and exclusively managed the rental unit on the first floor. Accordingly, the court found it more equitable to accord majority ownership to the only cotenant it found to have made contributions to the property.

Defendant has offered no persuasive reason for us to reverse this decision, which was based on the court's credibility findings and "notions of general justice and equity between the parties." Newman, supra, 70 N.J. at 263. See also State v. Locurto, 157 N.J. 463, 471 (1999). Considering the second part of the case through the preponderance-of-the-evidence prism, there is sufficient credible evidence in the record supporting Judge Olivieri's decision. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Finally, defendant claims the judge erred when he dismissed her lockout claim, based upon N.J.S.A. 2A:39-1, because of defendant's failure to establish damages. The judge explained that though plaintiff changed the locks on the basement and precluded defendant from entering and acquiring her personal property, defendant "has shown [with] absolutely no specificity what the damages would be. She refuses to get her items out of there because she says she owns the house." Consequently, the court was "unable, with any reasonable degree of certainty, to find what the measure of damages would be." We agree fully with the judge's decision.

We further point out that, even if defendant had proved damages, she would not be entitled to recover under N.J.S.A. 2A:39-1. Defendant was found by Judge Olivieri to be not living in the property. As a non-resident, she was not entitled to rely upon the second portion of the statute requiring "legal process" for persons seeking entry and detention. Ibid. See also Zankman v. Luppino, 121 N.J. Super. 346, 348-49 (Law Div. 1972).

The first part of the statute precludes "any person" from entering "upon or into any real property . . . and detain[ing] and hold[ing] the same, except for entries given by law, and then only in a peaceable manner." N.J.S.A. 2A:39-1. Because plaintiff was a cotenant, she had a concurrent right to use and possess the entire property, including the basement area. Mandelbaum, supra, 11 N.J. Super. at 30. Thus, plaintiff's peaceful entry into the basement was pursuant to her rights as a tenant-in-common.

Moreover, under the statute, there is no unlawful detention unless possession is denied after a written demand for possession has been made. N.J.S.A. 2A:39-4. Although defendant testified that she asked plaintiff's attorney for a key, nowhere is there any evidence that defendant demanded possession in writing. Therefore, she has no claim under the statute.

In any event, should defendant now wish to recover her personal property, we assume that plaintiff will agree to any necessary and reasonable arrangements.

 
In conclusion, we find that defendant has advanced no sufficient basis to justify reversal of the court's decision, and we affirm.

Affirmed.

Defendant, as a cotenant, could have brought a claim under the doctrine of ouster since each cotenant has an undivided interest in the entire property. Newman v. Chase, 70 N.J. 254, 267 (1975). Ouster is not complete, however, unless the excluded cotenant formally demands access to the property and is thereafter denied. Bauer v. Migliaccio, 235 N.J. Super. 127, 133 (Ch. 1989).

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A-2131-05T3

October 24, 2006