PHYLLIS GIANNINI v. THE ESTATE OF JOHN PERRI, JR., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2928-04T32928-04T3

PHYLLIS GIANNINI,

Plaintiff-Appellant,

v.

THE ESTATE OF JOHN PERRI, JR.,

and CAROL LINARDIS,

Defendants-Respondents.

__________________________________

 

Argued November 27, 2006 - Decided December 29, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County,

CP-146-02.

Joseph R. Giannini argued the cause for appellant.

Peter J. Leyh argued the cause for respondents (Braverman Kaskey, attorneys; Mr. Leyh, on the brief).

PER CURIAM

Plaintiff, Phyllis Giannini, appeals from an adverse judgment dismissing her complaint following a two-day trial in the Chancery Division. We affirm.

The following facts emerged from the trial. On January 27, 1999, decedent John Perri, Jr., a widower, executed his Last Will and Testament specifically bequeathing $5000 to the Salvation Army and the remainder of his estate to his niece and goddaughter, defendant, Carol Linardis, who was also named as executrix in the will. At the time of his death, decedent resided at 44 Mara Court in Cherry Hill, a three-bedroom low- income subsidized townhouse, purchased by him in 1985 at a deed-restricted price of approximately $70,000. Plaintiff, a widow, lived two houses away from decedent in a two-bedroom home with her teenage son. Plaintiff and decedent had been neighbors since 1986. When they first met, decedent was in his late sixties and plaintiff in her thirties.

In September 2001, decedent was injured in an automobile accident. According to plaintiff, in July 2001 decedent mentioned for the first time the possibility of selling his home to her at his cost because it was larger than her home and would be "a good deal for [her] . . . and [her] son." Plaintiff claimed that after his 2001 automobile accident, decedent became more serious about offering his home to her. Decedent was admitted to the hospital in November 2001 and thereafter placed in a rehabilitation facility where he remained until December 26, 2001. Plaintiff visited decedent almost daily. She was given keys to his home and his car and would feed his bird, and purchased clothing for him while he was in rehabilitation. Plaintiff stated that prior to decedent's 2001 automobile accident she helped him, out of the goodness of her heart, as the neighborly thing to do. After the accident, she helped decedent because the promise regarding the sale of the house was "a lucrative deal" for her. She claimed that she would not have helped him as much as she did absent the promise to sell her the house. She believed that the house was compensation for her services. During the time decedent was in rehabilitation and after he returned home, plaintiff attempted to have decedent place his offer to sell the house in writing. However, decedent never placed the purported offer in writing nor did he speak with his attorney as plaintiff suggested.

Decedent paid plaintiff's property taxes on her home in November 2001. From time to time, decedent would give plaintiff ten or twenty dollars for going to the store or doing other errands. She accepted these payments some of the time but not all of the time. On December 26, 2001, the day decedent returned home from rehabilitation, plaintiff, at decedent's request, wrote a check from his account to herself for $1000, in order to obtain cash for him. Plaintiff kept approximately $500 for herself. Decedent also gave her $500 as a Christmas gift on December 17.

Decedent died in his home on February 18, 2002. On February 24, 2002, plaintiff met with defendant. According to plaintiff, defendant told her that her "uncle said you were interested in the house; are you?" Plaintiff responded, "YES." Defendant then said, "I don't understand why you would want to move two doors down; that doesn't make any sense to me." Plaintiff replied, "it's a good deal for me. It's a bigger house; it's made better. And I can sell my house and make a great profit." According to plaintiff, defendant then said that she had to check on the deed restriction and would go to the township that week. Plaintiff claimed that defendant told her that she would then get back to her but she never did.

On March 24, 2002, plaintiff learned that decedent's house was placed on the market for sale at $149,000. Plaintiff called defendant. Plaintiff testified: "I called [defendant] immediately. I was really angry because I told her I wanted it. And everybody else knew that [decedent] wanted me to have the first chance to get it." Plaintiff testified that it was during that conversation that she told defendant, for the first time, that decedent promised to sell her the house for $70,000.

Defendant was issued letters testamentary on March 22, 2002, and put the home on the market for $149,900 the same day. An offer on the house was received four days later at the $149,900 price, which defendant accepted. The price was reduced to the deed-restricted price and the sale went through on April 30, 2002, for a price of $88,764.

Defendant, through her attorney, offered to sell decedent's home to plaintiff for $88,000 on April 5, 2002. Plaintiff was given two days to respond to the offer during the attorney review period with the prospective purchasers. Believing she was promised the house for a cost of $70,000, plaintiff made a "counteroffer" in that amount. Defendant rejected plaintiff's counteroffer.

Defendant testified that decedent talked to her about plaintiff. He told her that plaintiff would do food shopping for him, take him to the doctor's office, pick up lottery tickets for him, and take him to lunch and breakfast. He told her that he would pay plaintiff twenty or twenty-five dollars because "he doesn't let anybody do anything for nothing." Decedent would also pick up the cost of lunch and breakfast when they went out together.

Defendant also testified that she spoke with plaintiff on February 24, 2002, in plaintiff's kitchen. Defendant's version of the conversation was somewhat different than plaintiff's. Defendant asked plaintiff whether she was interested in her uncle's house, and plaintiff responded that she was not sure and asked what price defendant was asking. Defendant replied that she had not "gotten that far," was concerned with cleaning out the house, and that plaintiff should get back to her in three to four weeks. Plaintiff did not get back to defendant until the "for sale" sign was placed on the property in late March 2002. It was at that time that plaintiff told defendant for the first time that she expected to purchase the home for $70,000. When the home was first listed, defendant was unaware of the deed restriction and testified that plaintiff never mentioned a deed restriction to her. After she became aware of the deed restriction, the listing price was lowered to $88,000.

According to defendant, decedent spoke to her about the disposition of his estate prior to his death. He told defendant that with the exception of a $5000 bequest to the Salvation Army, the estate would all go to defendant, and that she could do with it as she saw fit. Defendant indicated that in October 2001 her uncle told her that plaintiff had an interest in purchasing his house and that it would be nice if she first asked plaintiff if she wanted to purchase it before placing the home on the market. It was in compliance with that request that, following her uncle's death, defendant had the conversation with plaintiff in plaintiff's kitchen. There is no mention of plaintiff or a contract for plaintiff to purchase decedent's home in his Last Will and Testament.

In addition to plaintiff's testimony, plaintiff presented testimony from Jane Mullowney, plaintiff's neighbor for fourteen years. Mullowney testified that she had conversations with decedent concerning his deed restriction, explaining that she was shocked to hear that it was low-income property because she had the same townhouse, which she later sold for $180,000. Although she testified that decedent told her his home would be a great place for plaintiff to live because she lost her husband and was living on social security, she could not remember the date of the conversation. She provided no testimony concerning either the purported contract or the price plaintiff claimed decedent promised.

Alvira Martellacci, another niece of decedent, was also called as a witness by plaintiff. She testified that decedent discussed the offer of his home to plaintiff on two identifiable occasions. Martellacci recalled that the conversations took place at restaurants, one in the summer and the other in the spring, but could not give a more exact answer. Martellacci indicated that her uncle offered to sell her his home, but she declined, and then he asked her if she "minded if he sold the house to [plaintiff] . . . [f]or the selling cost of the house." Decedent explained to her that there was a deed restriction on the house and it was much bigger than plaintiff's house.

Following receipt of written summations, the trial judge announced his findings of fact and conclusions of law. He found that decedent left all his property by his Last Will and Testament to defendant. The Will did not reference any contract or plaintiff in any manner. Although the judge found that plaintiff assisted decedent and that she was his caretaker for six months prior to his death, he noted that for approximately two of those months decedent was in the hospital or rehabilitation. He found that plaintiff's testimony "was calculated to convince the [c]ourt" that she would receive his house for $70,000 in return for the services she rendered to decedent. He pointed out that plaintiff admitted she was always alone with decedent when these promises were made.

The judge emphasized that decedent, who was alert and had all his faculties, did not acquiesce to plaintiff's request to place his purported offer in writing. He also emphasized that no mention was made of the purported promise in decedent's will. He related defendant's testimony that decedent mentioned that it would be "nice" if she allowed plaintiff to make an offer on the home, but at no time mentioned a price. Indeed, the judge found it significant that the price of $70,000 was never mentioned by plaintiff when defendant and plaintiff had their kitchen conversation, but instead was mentioned for the first time on March 24, after the property was put up for sale. The judge reasoned that there was ample opportunity for plaintiff to approach defendant about the house during the five-week period, but that she failed to do so. Moreover, plaintiff took no action in furtherance of becoming an eligible purchaser for the home, such as filing the necessary application with the township to comply with the low-income deed restriction.

The judge considered Martellacci's testimony ambiguous, lacking details and credibility and biased against defendant. Even if Martellacci's testimony that decedent wanted his house to be sold to plaintiff at cost was true, the judge found that a reasonable interpretation was that he wanted it to be sold for $88,000, not the $70,000 he paid for it. The judge found that defendant offered to sell plaintiff the house for $88,000, but plaintiff rejected the offer.

The judge rejected plaintiff's claim that the court should follow Klockner v. Green, 54 N.J. 230 (1969), and find that decedent intended to obligate himself to bequeath his townhouse in return for $70,000. In reaching his conclusions of law, the judge alluded to plaintiff's reliance on Klockner and mistakenly concluded that the alleged contract between decedent and plaintiff was a contract to make a devise. However, he found that, under N.J.S.A. 3B:1-4, the alleged contract was unenforceable because it was not established by a provision in the will stating its material provisions, or by expressed reference in the will and extrinsic evidence, or in a writing signed by the decedent.

The judge then concluded that, notwithstanding his findings regarding the unenforceability of the alleged promise as a contract to make a devise, the plaintiff failed to establish by clear and convincing evidence an oral agreement between plaintiff and decedent for the conveyance of decedent's townhouse for $70,000.

On appeal, plaintiff asserts that the judge erred in finding that the oral agreement was a contract to make a devise. She also asserts that the judge (1) failed to analyze the evidence supporting her claim; (2) improperly accepted and parroted defendant's closing arguments; and (3) erred in dismissing her claim as a creditor of the estate because defendant breached her fiduciary duty as executrix. Plaintiff argues further that judgment should have been entered in her favor because (1) the law abhors forfeiture; (2) there was a clear and definite promise made by the decedent in return for plaintiff's reliance in performing services for him, thus implicating promissory estoppel; (3) her proofs established that she was an equitable owner of the property; and (4) she is entitled to damages for quantum meruit by adopting defendant's argument that the decedent remunerated her for the services she performed.

N.J.S.A. 25:1-13b provides that an oral agreement to transfer or hold an interest in real estate for the benefit of another is not enforceable unless the existence of the agreement is proven by clear and convincing evidence. See also Morton v. 4 Orchard Land Trust, 180 N.J. 118, 130 (2004) (finding no compelling proof by clear and convincing evidence that the defendant manifested an intent to enter into an oral agreement for the sale of the Orchard Court property). Here, the judge's factual findings that plaintiff failed to establish an oral contract to convey or hold decedent's real estate by clear and convincing evidence is supported by sufficient credible evidence in the record as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); In re Will of Liebl, 260 N.J. Super. 519, 523 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993). Credibility is always for the factfinder to determine, Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956), and we will not make independent credibility determinations unless the trial judge's reasoning was not articulated and cannot be inferred from the record. State v. Locurto, 157 N.J. 463, 472-75 (1999). A judge's findings and conclusions are entitled to great deference in light of the judge's opportunity to perceive the witnesses and assess their credibility, and should not be disturbed unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484; see also Liebl, supra, 260 N.J. Super. at 524.

These bedrock principles of appellate review are particularly applicable here where plaintiff was unable to give dates when the purported oral agreement was entered into, the decedent refused to put the agreement in writing despite plaintiff's request, and the only evidence of the $70,000 came from plaintiff's conversations with decedent with no one else present. Moreover, as the judge noted, plaintiff's failure to mention the agreed-upon price at her meeting with defendant following decedent's death casts significant doubt on the credibility of her assertion. Likewise, neither Mullowney nor Martellacci testified that the decedent promised to convey the property for the purported $70,000.

The judge also appropriately dismissed plaintiff's claim that, as executor, defendant violated her fiduciary duty because plaintiff was not a viable creditor. So too, the judge correctly concluded that plaintiff's claim for services rendered, under the theory of quantum meruit, failed because her own testimony established that she never told decedent that she expected to be compensated for the services that she provided and she did not present any evidence as to the reasonable value of those services. See Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002) ("To recover under a theory of quantum meruit, a plaintiff must establish: '(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.'" Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994)). Plaintiff's arguments to the contrary are legally and factually unsupported, and the issues presented are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Because plaintiff failed to establish a promise to sell her the property for $70,000, we need not address her remaining substantive arguments regarding her proofs at trial. We deem them not to require discussion. R. 2:11-3(e)(1)(E).

Finally, we address plaintiff's apparent appeal of the trial judge's procedural order of January 5, 2005, requiring plaintiff to pay the cost of Martellacci's deposition. Defendant moved to preclude Martellacci's testimony at trial for failure to appear pursuant to subpoena at a September 20, 2004, deposition or alternatively compel her deposition and costs. The judge compelled Martellacci's deposition. His order also provided:

[I]f [d]efendants can demonstrate that [p]laintiff influenced . . . Martellacci not to appear for her deposition pursuant to subpoena on September 20th, then upon application the costs for her deposition shall be shifted to [p]laintiff, including [d]efendants' reasonable attorneys' fees in connection with filing and arguing their [m]otion.

On October 6, 2004, Martellacci appeared at her deposition and testified that plaintiff told her she did not have to attend the earlier scheduled deposition. Defendant moved to shift the cost of the deposition to plaintiff. The judge granted defendant's motion and required plaintiff to pay the $959.10 in costs for Martellacci's deposition.

On appeal, plaintiff merely states, in a conclusory fashion, that she is appealing the judge's order shifting the costs of depositions, but does not provide any supporting argument nor does she include her contentions in a specific point in her appellate brief. Where an issue is not briefed beyond conclusory statements by the brief writer, we will not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983).

Nevertheless, we find no error. "[T]rial courts have 'wide discretion in deciding the appropriate sanction for a breach of discovery rules,' as long as the sanction is 'just and reasonable.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) (quoting Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (App. Div. 1988), aff'd sub nom. Mauro v. Raymark Indus., Inc., 116 N.J. 126 (1989)). Discretionary determinations should not be overturned unless "an injustice appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). The sanction imposed was directly related to plaintiff's discovery violation and was well within the judge's discretion.

 
Affirmed.

Plaintiff believed her "great profit" would be between $40,000 and $55,000 based on decedent's purported offer to sell plaintiff the house for $70,000, i.e., she believed she could sell her house for approximately $125,000.

Through the testimony, the deed-restricted price was referred to as $88,000.

Defendant testified that she made the offer to plaintiff after consulting her realtor and attorney, who advised defendant that even though she had entered a contract with other prospective purchasers for sale of the home, defendant could make an offer to plaintiff during the three-day attorney-review period.

Martellacci admitted on cross-examination that the last time she spoke with decedent was in July or August 2001.

Both parties examined Martellacci at length regarding a transaction between herself and decedent related to the purchase of her mobile home. Decedent offered to pay off Martellacci's mortgage and then transfer title to her. However, when it was learned that title was placed in her children's name, decedent's attorney demanded that Martellacci return the money. The testimony was permitted to show bias on the part of Martellacci against defendant and in favor of plaintiff. Defendant denied sandbagging any deal Martellacci may have had with decedent.

The judge also indicated parenthetically that plaintiff failed to establish by a preponderance of the evidence an oral agreement to hold for plaintiff's benefit decedent's townhouse for $70,000.

(continued)

(continued)

16

A-2928-04T3

December 29, 2006