JAMES SPADA v. MARIUS SPADA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4382-04T54382-04T5

JAMES SPADA,

Plaintiff-Appellant,

v.

MARIUS SPADA, ANSEL SPADA,

and VICTORIA SPADA,

Defendants-Respondents,

and

ARTHUR D'ALLESANDRO,

Defendant.

_________________________________

 

Argued: September 19, 2006 - Decided November 2, 2006

Before Judges Kestin, Weissbard and Payne.

On appeal from the Superior Court of New Jersey, Civil Part, Chancery Division, Somerset County, C-12006-04.

Timothy P. McKeown argued the cause for appellant (Norris McLaughlin & Marcus, attorneys; Richard J. Schachter and Mr. McKeown, on the brief).

Robert J. Machi argued the cause for respondents Marius Spada and Ansel Spada (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Mr. Machi, of counsel and on the brief).

Kearns & Duffy, attorneys for respondent Victoria Spada relying on brief filed on behalf of respondents Marius Spada and Ansel Spada.

PER CURIAM

This is an action over the parties' rights regarding a parcel of real property. Plaintiff, James Spada, appeals from an order entered on February 23, 2005, denying his motion for summary judgment; granting the motion for summary judgment filed by defendants Marius Spada and Ansel Spada, and dismissing all claims against defendants; mandating partition and requiring the property to be sold on the terms recited in the order; and providing for other relief. Judge Rosemarie R. Williams expressed the reasons for the order in a written opinion. The terms of the February 23 order were slightly modified in a subsequent order, entered on April 8, 2005, disposing of, and largely denying, motions for reconsideration. In an oral decision following argument on that motion, Judge Williams amplified the reasons for her decision.

The dispute is among family members. It arises from two transactions. The first was represented by a deed in which Anne Marie Spada, since deceased, conveyed differing percentage interests in the real estate to herself, her husband Marius Spada, and two of their children James Spada and Victoria Spada, as joint tenants with rights of survivorship. The second transaction, allegedly, involved promises by Marius to Anne Marie regarding disposition of his interest in the property, from which promises, plaintiff contends, Marius departed in conveying his interest to another son, Ansel, and in other ways. An earlier suit over the effectiveness of the deed from Anne Marie was resolved with a decision that it had been validly delivered and could be recorded.

Judge Williams decided that defendants were not collaterally estopped by the prior decision "from litigating the issue of whether an agreement had been reached between Anne Marie and Marius;" that plaintiff could not satisfy the "clear and convincing" standard of proof required by the Statute of Frauds, N.J.S.A. 25:1-13, to establish the terms of an unwritten agreement to transfer an interest in real estate; that such agreement as may have been made was, in any event, unenforceable because it was an agreement to make a testamentary disposition and was not in writing as required by N.J.S.A. 3B:1-4; that principles of equitable fraud, promissory estoppel, and part performance did not apply; and that partition and sale were appropriate with reimbursement by James and Victoria from their shares of the proceeds of sale for the reasonable expenses of maintaining the property. On appeal, plaintiff challenges all these rulings, arguing, in sum, as he did before the trial court, that a constructive trust should be imposed on the interest Ansel now holds.

We have analyzed the record in the light of the written and oral arguments advanced by the parties and prevailing standards of law. It is not necessary, in order to reach a fully dispositive result in the matter, to determine whether Marius's purported agreement to transfer title to the property was an agreement to make a testamentary disposition. Accordingly, we do not address that question. Based on our review, we are in substantial agreement with the decisional rationale Judge Williams articulated in her written and oral decisions in all other respects. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30, 536-37, 540-42 (1995).

The order on appeal is affirmed.

 

(continued)

(continued)

4

A-4382-04T5

November 2, 2006