EWALD PRIES v. KATHLEEN HUGIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4559-07T3

EWALD PRIES,

Plaintiff-Appellant,

v.

KATHLEEN HUGIN, individually and as the

Executrix of THE ESTATE OF CATHERINE

MALLON, Deceased; CHRISTA

QUAGLIAOZZI; MAUREEN LOPEZ,

Defendants,

and

THOMAS MALLON; MICHAEL

J. MALLON; DENNIS M. MALLON,

Defendants-Respondents.

________________________________________________________________

December 7, 2009

Argued March 9, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3729-04.

James J. Tutak argued the cause for appellant.

John E. Lanza argued the cause for respondents (Lanza & Lanza LLP, attorneys; Mr. Lanza, on the brief).

PER CURIAM

Plaintiff, Ewald Pries, appeals from an order, dated June 9, 2006, granting summary judgment in favor of defendants, Thomas Mallon, Michael J. Mallon, and Dennis M. Mallon (collectively the Mallon defendants), as heirs to the Estate of Catherine Mallon, deceased (the Estate). Additional heirs to the Estate, defendants Kathleen Hugin, Christa Quagliaozzi, and Maureen Lopez are not participating in this appeal. Defendants Quagliaozzi and Lopez were dismissed from the action by order for voluntary dismissal filed on November 29, 2006. A separate order for entry of judgment against the Estate and against Kathleen Hugin, individually and as Executrix of the Estate, was filed on December 21, 2007.

Plaintiff asserts in his appellate brief that "[t]he crux of the motion for summary judgment was whether or not, under the facts as stated, the heirs of the estate were liable to plaintiff as owners of the property from which the raw sewerage flowed into the plaintiff's property." Plaintiff contends that under Orland Props. v. Broderick, 94 N.J. Super. 307 (Ch. Div. 1967), the defendants became owners of the property once owned by the late Catherine Mallon on Ninth Street, Union City (the property), upon her death. Plaintiff further contends that as owners of the property, defendants' failure to repair a broken sewer line, which caused raw sewage to flow onto plaintiff's property constituted a failure to abate a nuisance and continuing trespass.

The Mallon defendants contend that Orland is no longer good law, and that the controlling authority is N.J.S.A. 3B:10-29 and -30. Pursuant to N.J.S.A. 3B:10-29, "every personal representative has a right to and shall take possession or control of, the decedent's property . . . [and] shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession." In accordance with N.J.S.A. 3B:10-30, "a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate." Defendants argued that as beneficiaries of their mother's Will, they were rightfully joined in the action as interested parties, but that they owe no duty to plaintiff.

At the conclusion of the oral arguments, the motion judge expressed her agreement with the defense "that the Orland case is distinguishable, and that the statute [N.J.S.A.] 3B:10-29 is what is in fact controlling in this day and time." The court observed that "as far as ownership [is concerned], legally the ownership is still vested in [the] Estate." The court added that the property will continue to be owned by the Estate until such time as a deed has been executed transferring the property. While we agree with plaintiff that defendants became owners of the property upon Catherine Mallon's death, we nonetheless agree with defendants and the motion judge that they owe no duty to plaintiff. The duty, if any, is owed by the Estate and the Executrix, who manages and controls the property. We, therefore, affirm the order granting summary judgment.

The material facts in this case are undisputed. At all relevant times, plaintiff was the owner of a property on Ninth Street, Union City, which was adjoined to the property owned by the late Catherine Mallon. On May 10, 1990, Catherine Mallon died testate. In her Will, she bequeathed and devised the property to her six children: Thomas Mallon, Michael J. Mallon, Dennis M. Mallon, Kathleen Hugin, Christa Quagliaozzi, and Maureen Lopez. Kathleen Hugin was named Executrix of the Estate.

Plaintiff suspected that raw sewage was continuously flowing from the property onto his property on Ninth Street. Based on that suspicion, he obtained an order allowing him access to the property. An inspection by plaintiff's experts confirmed that the source of the sewage was a broken sewer line in the basement of the property which was flowing under the common foundation wall and into plaintiff's basement.

When it became apparent to plaintiff that he could not reach a satisfactory resolution of the problem with the Estate or the individual devisees under the Will of Catherine Mallon, he filed a complaint in the Superior Court of New Jersey, Law Division, Hudson County, to compel abatement of the nuisance and continuing trespass, and to recover damages. In that complaint, plaintiff alleged that all who inherited the property under Catherine Mallon's Will, including the Mallon defendants, were liable for failing to fix the broken sewer line in the basement of the property.

After discovery was complete, the Mallon defendants moved for summary judgment. They argued that they should not be held liable for damage caused by a condition on the property because they neither owned nor controlled the property. Plaintiff responded that under Orland, title to the real estate passed to the heirs of the deceased owner upon the owner's death. The heirs contended that they were mere beneficiaries, without title to the property. As already noted, the court agreed that Orland is distinguishable and that N.J.S.A. 3B:10-29 is the controlling authority. An order granting summary judgment in favor of the Mallon defendants only was entered on June 9, 2006.1 Plaintiff filed a notice of appeal from that order on May 30, 2008.

The standard controlling our review is well established. Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In this case, there is no dispute as to issues of fact, and we need only determine whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

On appeal, plaintiff makes a single legal argument: "Does the holding of the Chancery Division in Orland v. Broderick, that title to real estate passes to the owner's heirs upon the owner's death, render the Mallon defendants potentially liable to the plaintiff for the conditions complained of, as owners of the property in question?" Under the undisputed facts of this case, we find possession and control more determinative than ownership or title. In this regard, the opinion in Kernan v. One Washington Park Urban Renewal Assoc., 154 N.J. 437 (1998), is instructive.

In Kernan, the question presented was "whether a commercial landowner in bankruptcy, who [was] judicially precluded from engaging in the management and control of its property by the court appointment of a trustee and managing agent, owe[d] a duty to third persons to maintain an abutting public sidewalk in a reasonably safe condition." Id. at 442. Addressing the threshold issue of duty, the Court first recognized that "the question of whether a duty exists is a matter of law properly decided by the court, not the jury." Id. at 445. Then, the Court reiterated the factors that influence the recognition of a duty:

In determining whether a duty exists, the Court's analysis "involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Ibid. [Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994)] (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)); see also Goldberg v. Housing Auth. 38 N.J. 578, 588 (1962) ("[T]he question is one of fairness in the light of the nature of the relationship, the nature of the hazard, and the impact of such a duty on the public interest.").

[Id. at 445-46.]

Applying that analysis to the facts in Kernan, the Court concluded that whether the defendant owed a duty to the injured plaintiff depended on what effect the appointment by the bankruptcy court of a trustee and managing agent to manage the subject premises had on the defendant's ability to participate in the daily management of the premises and its authority to control snow and ice removal on the day of plaintiff's fall. Id. at 446. Because the trustee had been appointed as an agent of the bankruptcy court, and because he acted as the representative of the estate, the trustee was not an agent of the owner; the owner, exercising no control over the property, owed no duty to the plaintiff to maintain the sidewalk. Id. at 453-54.

Similarly, accepting that title vested in the Mallon defendants upon the death of their mother, the property is nonetheless subject to the supervision of the Executrix and the Probate Court. The Mallon defendants had no right to possess or control the management of the property, as that right of possession, control and management was vested, by statute, in the Executrix. The Executrix does not derive her power from an agreement among siblings or heirs. Rather, under N.J.S.A. 3B:10-29 and -30, an Executor or personal representative of a decedent is afforded possession and control of the decedent's property and power over the title to property of the Estate.

Under such circumstances, while we agree with the motion judge that Orland is distinguishable from this case in that Catherine Mallon died testate, that distinction is not material. Subsequent to the issuance of the decision in Orland in 1967, N.J.S.A. 3B:10-29 and -30 were enacted in 1978; even after those statutory enactments, we have recognized that "title to real estate vests in a devisee upon [a] testator's death, 'even before admission of the will to probate.'" In re Will of Gardner, 215 N.J. Super. 578, 586 (App. Div. 1987) (quoting Montclair Nat'l. Bank & Trust Co. v. Seton Hall Coll. of Med., 96 N.J. Super. 428, 434 (App. Div.), certif. denied, 50 N.J. 301 (1967)). See also Egner v. Egner, 183 N.J. Super. 326, 328 (Ch. Div.) (finding that where a testator devises real property in his Will, the ownership of that property is transferred to the devisees upon the testator's death), aff'd, 185 N.J. Super. 1 (App. Div. 1982).

In Orland, supra, however, the court noted also that at that time "the general administrator of an intestate decedent has no control over the decedent's realty except in one case provided by statute." 94 N.J. Super. at 313 (quoting Judge Clapp on Wills and Administration, 1025). By statute, enacted after Orland was decided, the administrator has such control. As N.J.S.A. 3B:14-23 enumerates, the general powers of the fiduciary or personal representatives of a decedent. Such powers expressly include the power to manage real property and to make repairs to the property. More fully, N.J.S.A. 3B:14-23 provides, in pertinent part, as follows:

In the absence of contrary or limiting provisions in the judgment or order appointing a fiduciary, in the will, deed or other instrument or in a subsequent court judgment or order, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power:

. . . .

d. To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary;

e. With respect to any property or any interest therein owned by an estate or trust, including any real property belonging to the fiduciary's decedent at death, except where the property or any interest therein is specifically disposed of:

(1) To take possession of and manage the property and to collect the rents therefrom, and pay taxes, mortgage interest and other charges against the property;

. . . .

f. To make repairs of the estate or trust for the purpose of preserving the property or rendering it rentable or saleable;

In this case, even though title to the property may have nominally passed by Will to the heirs of Catherine Mallon upon her death, possession and control were vested in the Executrix and remain so vested. Kathleen Hugin, as Executrix of the Estate, is charged with the management and control of the Estate, in trust, for the benefit not only of her siblings, but also of the creditors and others interested in the Estate. N.J.S.A. 3B:10-30.

We do not agree with the trial court's suggestion that the Mallon defendants are not owners of the property, but we do agree with the court that defendants lacked any right to possess and control the property. See, e.g., Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546 (1991) (indicating that an order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it). See also Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973) (recognizing that appeals are taken from judgments, not from oral opinions), certif. denied, 64 N.J. 513 (1974). The Mallon defendants had no opportunity or ability to remedy the condition about which plaintiff complains. We note that they sought to compel an accounting from the Executrix, without success. In fairness, they can not be found to owe a duty that would make them liable for the damage to plaintiff's property. The duty to maintain the property rested solely with the Executrix.

Affirmed.

1 The order noted that the remaining defendants attempted, by a letter belatedly submitted, to join the motion filed by the Mallon defendants. That attempt was not allowed. Eventually, orders were entered disposing of the claims against the remaining defendants, thereby making final the order for summary judgment in favor of the Mallon defendants.