SHERI REDEKER v. WARREN LUTZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2287-05T52287-05T5

SHERI REDEKER,

Plaintiff-Appellant,

v.

WARREN LUTZ,

Defendant-Respondent.

_________________________________

 

Submitted: October 24, 2006 - Decided November 27, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1241-05.

Dunne & Associates, attorneys for appellant (Frederick R. Dunne, Jr., on the brief).

Heer & Lyons, attorneys for respondent (Theresa A. Lyons, on the brief).

PER CURIAM

Plaintiff Sheri Redeker appeals from summary judgment dismissal of her complaint for damages against her former boyfriend, defendant Warren Lutz, based on allegations of breach of oral agreement and the principle of promissory estoppel. We affirm.

Plaintiff, who was divorced, entered into a seven-year sexual relationship with defendant in July 1992, on the belief that defendant was also divorced. In September l992, defendant informed plaintiff he was married and had been married for thirty years, but that he and his wife were sexually estranged. According to plaintiff, defendant informed her that he intended to divorce his wife in the near future so that he and plaintiff could be together and he could take care of her. While plaintiff had no intention of marrying defendant, she wanted him to divorce his wife so the two of them would be able to spend more time together and travel. Defendant never actually made plans to leave his wife and over time, he told plaintiff of one obstacle after another that impeded any divorce plans.

In l995, the parties leased an apartment in Springfield. Defendant contributed towards the rent but continued to reside with his wife in the marital home two or three nights a week. Plaintiff was a realtor and asserts at that time she was earning about $60,000 a year. According to plaintiff, defendant indicated he would be the couple's "main breadwinner" and she would not have to earn as much money as she previously did. Plaintiff contended that at defendant's insistence, so she could have a routine "9-to-5" work schedule and spend more time with him, she enrolled in a paralegal program at Fairleigh Dickinson University, at a cost of $4675, which she completed in l997. Plaintiff claimed she only earned $13,000 in real estate sales commissions in l996 while attending paralegal school.

In June 1998, plaintiff sold her house in Millburn, New Jersey for $299,000 and moved to an apartment in Florida. Her asserted moving expenses were $6,000. Plaintiff contended the sale of her Millburn house and her relocation to Florida was defendant's idea and done in reliance on his promise to join her within a year so they could live together and he could support her. Defendant claimed he never agreed to move to Florida and thought it was unwise for plaintiff to sell her rental property in Millburn.

The parties continued their relationship, traveling back and forth between Florida and New Jersey. In May 1999, plaintiff enrolled in a two-semester course at the Atlantic Coast Institute for court reporting, which she contended defendant had encouraged her to do so she would have flexibility to travel with him. Her expenses included $4000 in tuition, $500 in books and $1000 for a used stenographer machine to complete her homework. Plaintiff only attended one semester and never worked as a court reporter.

Plaintiff ended their relationship around September l999, when she discovered defendant was also having an affair with a woman in London. She claimed defendant had breached his promise to her to remain monogamous and had put their relationship at risk by possibly subjecting her to a sexually transmitted disease. Plaintiff remarried in March 2001.

In July 2002 plaintiff filed the present action in the Law Division seeking to recover compensatory and punitive damages on theories of promissory estoppel and breach of oral contract. Plaintiff's promissory estoppel theory is based on defendant's "lies and false promises" that he would divorce his wife, join her in Florida, and "they would live together for the rest of their lives and . . . he would take care of her," and her reliance on these false promises by selling her house in New Jersey, moving to Florida, retiring from her career as a "profitable" real estate saleswoman in New Jersey, studying to become a paralegal and a court reporter at reduced incomes, and "completely alter[ing] her life and living arrangements, including her employment." Plaintiff's asserted breach of oral contract is based on defendant's promise to care and support her for the rest of her life and "pay all of the expenses incurred by her for her education, lost wages, or other connected expenses" if she would make all of the aforementioned adjustments in her life.

According to plaintiff, defendant reneged on his requirement under the oral contract "to take care of her for the rest of her life" and "left [her] in Florida without employment and with significant debt that had been incurred as a result of his direction and demands." Plaintiff did not seek continued support, but reimbursement for: (1) the cost of paralegal ($4675) and court reporting ($5500) schools; (2) $6000 in moving expenses; (3) $36,000 in lost income in l996 while attending paralegal school; (4) $20,000 from trust funds used in l996 to support herself; and (5) $500,000 in lost appreciation in the Millburn property, i.e., the difference between her sales price and the current market value if she had retained it.

After the matter was transferred to the Family Part over plaintiff's objection, the trial court dismissed the complaint on the public policy grounds that the extra-marital relationship precluded the cause of action. We reversed on appeal in an unpublished opinion (A-2630-03) and remanded the matter to the Law Division, determining that plaintiff had alleged sufficient facts to support the causes of action asserted and that the trial judge's expression of this State's public policy was not accurate.

On remand, Judge Derman granted defendant's motion for summary judgment, dismissing plaintiff's complaint on the alternate basis that: (1) plaintiff failed to establish damages and (2) plaintiff's claim was precluded by the principles of waiver, repudiation, abandonment and impossibility because it was plaintiff who terminated the relationship, thereby preventing defendant from fulfilling his promises. The motion judge also dismissed plaintiff's claim for punitive damages on the basis that "[t]he law does not provide for punitive damages in breach of contract cases."

On appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT JUDGE ERRED WHEN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT.

POINT TWO

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED BASED ON THE FACT THAT THE APPELLANT DOES NOT FILE INCOME TAX RETURNS.

POINT THREE

THE APPELLANT'S CLAIMS ARE NOT PRECLUDED BECAUSE OF WAIVER, REPUDIATION, ABANDONMENT OR IMPOSSIBILITY IN THIS CASE.

POINT FOUR

PLAINTIFF HAS SUFFERED DAMAGES AS OUTLINED IN HER COMPLAINT, INTERROGATORIES AND DEPOSITION.

POINT FIVE

DEFENDANT'S REQUEST THAT THE COURT MAKE A REFERRAL OF THE PLAINTIFF'S POSITION ON THE PAYMENT OF INCOME TAX TO THE INTERNAL REVENUE SERVICE, THE UNITED STATES JUSTICE DEPARTMENT AND WHATEVER OTHER AGENCIES THE COURT DEEMS APPROPRIATE IS IMPROPER AND NOTHING MORE THAN AN ATTEMPT TO INTIMIDATE THE PLAINTIFF.

POINT SIX

JUDGE DERMAN'S DECISION TO GRANT SUMMARY JUDGMENT WAS BARRED BY COLLATERAL ESTOPPEL BECAUSE THE ISSUE OF SUMMARY JUDGMENT WAS ALREADY REVIEWED BY THE APPELLATE COURT OF THE STATE OF NEW JERSEY.

The posture of the prior appeal was in the context of a summary judgment dismissal by the Family Part judge based on plaintiff's lack of entitlement to assert a claim on public policy grounds. We held that plaintiff's claims were contractual in nature and should be transferred back to the Law Division, and there was no public policy bar to her cause of action. We did not analyze plaintiff's proofs with reference to her sworn testimony as opposed to mere allegations contained in her complaint, nor did we specifically address the issue of damages. Accordingly, Judge Derman was not collaterally estopped from granting summary judgment on remand. In order for the doctrine of collateral estoppel to effectively preclude relitigation of an adjudicated issue, the actual identity of the issue posed in successive litigation must be clearly established. See Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)(collateral estoppel precludes a party from litigating an issue provided, among other conditions, the issue is identical to the issue decided in the prior proceeding; the issue was actually litigated in the prior proceeding; and the determination of the issue was essential to the prior judgment).

The elements of promissory estoppel are: (1) the promisor made a "clear and definite" promise; (2) the promise was made with the expectation that the promisee would rely on it; (3) the promisee reasonably relied on the promise; and (4) a detriment was incurred in reliance on the promise that was of "definite and substantial nature." Malaker Corp. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App. Div. l978), certif. denied, 79 N.J. 488 (1979). After affording plaintiff all favorable inferences to which she is entitled as the party opposing summary judgment, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we are satisfied her certification, deposition testimony and interrogatory answers are insufficient to establish the prima facie elements of promissory estoppel. Bare conclusions in the pleadings without factual support in affidavits will not defeat a motion for summary judgment. Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).

Plaintiff failed to establish that defendant made a "clear and definite" promise to reimburse her tuition expenses, salary differential or living expenses if she switched careers, or her relocation expenses to Florida. Plaintiff certified that defendant wanted her to find another job that would allow her to spend more time with him and indicated to her he believed she would make a good paralegal. Plaintiff then enrolled in the paralegal course at Fairleigh Dickinson. Plaintiff's complaint alleges defendant promised to "pay all of the expenses incurred by her for her education, lost wages, or other connected expenses" if she switched careers. The record, however, is almost devoid of sworn statements supporting this claim, containing only the more generalized attestation that "defendant indicated that he would be the couple's main breadwinner and [she] would not have to earn so much money" and "I argued that my income would suffer [if I found another job], but the Defendant assured me that he would reimburse me for any losses that I suffered and I shouldn't worry." Although plaintiff certifies that defendant wanted her to have "free lance" employment so she could travel with him when he retired, and he thought her paralegal certification would be helpful if she went back to school to become a court reporter, she does not even certify a vague promise by him to pay the costs of that program. Nor does plaintiff depose or certify that defendant agreed to reimburse her for her moving expenses to Florida. In fact, plaintiff does not even claim she and defendant ever discussed the cost of the Fairleigh Dickinson or Atlantic Coast Institute programs; the amount of her purported lost earnings and living expenses in l996, or the fact and amount of the trust funds she purportedly used; the amount of her relocation expenses; or the time and method of repayment of these expenses.

Furthermore, plaintiff has failed to demonstrate the damages she seeks are "definite and substantial in nature." Plaintiff's claim for lost appreciation on the Millburn property is speculative and not quantifiable. Plaintiff contends she would not have sold her Millburn house but for defendant's insistence and promise that he would relocate with her to Florida. She purchased the property in l989 for $145,350 and sold it in l998 for $299,000, which was presumably the market value. Her sole proof of damages was her bald allegation that as a realtor she was aware the property continued to appreciate and was worth about $600,000 to $700,000, so if she had held onto the property longer, she would have had the opportunity for greater gain. Plaintiff did not present any appraisal or market analysis of the property to support her claim of appreciation. Moreover, though plaintiff claimed the property was income-producing, she presented no documentation as to the rental income or any proof whatsoever of taxes, maintenance, depreciation and the mortgage charges that she was carrying.

Nor could plaintiff validly support her claim for lost income, as her only proof of income was a l099 form for commissions that she evidently issued to herself. Contrary to plaintiff's assertion, Judge Derman's ruling was not based on a determination that plaintiff had no right to present her case because she did not file income tax returns or a bias towards her because of a disapproval of plaintiff's position on income tax. Rather, the court properly found that without the tax returns, plaintiff's proofs were deficient, i.e., she was unable to make a prima facie claim of lost income sufficient to withstand summary judgment. The trial court's reporting to the IRS of plaintiff's failure to file tax returns and pay taxes was not evidence of bias or animosity towards plaintiff, but was a legal requirement. See Sheridan v. Sheridan, 247 N.J. Super. 552, 566 (Ch. Div. l990).

Affirmed.

 

Plaintiff worked for two weeks as a paralegal for a private practitioner in Florida in September l999.

Plaintiff had previously lived in Florida and apparently maintained her real estate license there.

This is the corrected actual monetary damages asserted by plaintiff in her appellate briefs.

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A-2287-05T5

November 27, 2006