DANIEL SHALIT v. MICHAEL SHALIT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4418-15T3



DANIEL SHALIT, as attorney-in-
fact for MILDRED SHALIT,

              Plaintiff-Appellant,

v.

MICHAEL SHALIT,

          Defendant-Respondent.
________________________________

              Argued November 16, 2017 – Decided December 6, 2017

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No. L-
              1032-15.

              Lawrence S. Berger argued the cause for
              appellant (Berger & Bornstein, LLC, attorneys;
              Gregory J. Cannon, on the brief).

              David   B.  Rubin        argued     the    cause     for
              respondent.

PER CURIAM
     Plaintiff Daniel Shalit, as attorney-in-fact for the parties'

mother, Mildred Shalit,1 appeals from the January 22, 2016, and

May 3, 2016 Law Division orders granting defendant Michael Shalit's

motion for summary judgment and dismissing plaintiff's complaint.

We affirm.

     According to plaintiff's complaint, Mildred invested money

in a real estate project defendant began developing in Old Bridge

and Bricktown in 1989.    When the project was completed in 1998,

defendant put $574,664.89 that Mildred received as a return on her

investment into a joint bank account in his and Mildred's names.

     In June 2001, defendant withdrew $450,000 from the joint

account and plaintiff contends that defendant used it "to invest

in another real estate venture located on Veronica Avenue in

Franklin Township[.]"    Plaintiff concedes in this complaint that

defendant did not give Mildred "any security or collateral, nor

any ownership or partnership interest in the Veronica Avenue

[p]roject" and that defendant "used the $450,000[] for his own

personal investment in" the project.

     Defendant never returned these funds to the joint account.

On December 31, 2008, more than six years after he took the money


1
  Because the parties share the same surname, we refer to Mildred
Shalit as Mildred in this opinion and, in doing so, intend no
disrespect.


                                 2                          A-4418-15T3
from the joint account, defendant sent a letter to Mildred in

response to a letter she sent him eleven months earlier.2                 At the

end of the letter, defendant wrote:

          The money you advanced me for the land in
          Franklin will be paid back. I never said I
          wouldn't pay you. It is unfortunate that the
          township fought all the approvals and caused
          the closing to be postponed so many years. I
          will refund your advance as soon as I sell
          Tapatio or the Franklin property.

     On December 28, 2012, Mildred executed a Durable Power of

Attorney (POA) naming plaintiff as her attorney-in-fact.                 On July

24, 2015, plaintiff filed a complaint in his representative role

against defendant seeking the return of the $450,000. 3                   Counts

one, two, and three of the complaint alleged that defendant's

withdrawal   of   the   funds   from       the   joint   account   was    either

conversion, fraud, or breach of contract.                 Based on the same

factual allegations contained in the first three counts, plaintiff

sought to impose a constructive trust on the Veronica Avenue


2
  Mildred's November 12, 2007 letter was not introduced as an
exhibit in the trial court and, therefore, is not a part of the
record on appeal.
3
   The claims asserted by plaintiff in this case were originally
brought by him as a counterclaim in a Chancery Division action
defendant filed against plaintiff in Morris County, Shalit v.
Shalit, Docket No. MRS-0091-14. Pursuant to an agreement between
the parties, all claims in that matter were voluntarily withdrawn
with the condition that the statute of limitations would be tolled
as of October 1, 2014, the date plaintiff filed his counterclaim.


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project in count four and, in count five, claimed "an equitable

partnership and/or ownership interest" in the project.

     Defendant filed a motion for summary judgment, asserting that

plaintiff's   claims   were   barred   by    the    six-year   statute    of

limitations of 
N.J.S.A. 2A:14-1.4           In his brief opposing the

motion, plaintiff admitted that the statute of limitations for all

five counts of his complaint was six years.          However, he asserted

that defendant's December 31, 2008 letter to Mildred "revived" his

cause of action under 
N.J.S.A. 2A:14-24.           At oral argument on the

motion, however, plaintiff argued for the first time that the

twenty-year statute of limitations for "every action at law for

real estate" established in 
N.J.S.A. 2A:14-7 applied to counts

four and five of his complaint because defendant used the money

he took from the joint account to invest in the Veronica Avenue

real estate project.

     Following oral argument, Judge Yolanda Ciccone rendered a

thorough written opinion granting defendant's motion for summary

judgment on counts one, two, and three of the complaint.            Citing

the well-established case law interpreting this statute, the judge



4
   Defendant also argued that plaintiff's POA did not authorize
him to bring a lawsuit on Mildred's behalf against one of her
children. The trial judge denied defendant's motion for summary
judgment on this ground and, in view of our resolution of this
appeal, we do not address this contention further in this opinion.

                                  4                                A-4418-15T3
explained that 
N.J.S.A. 2A:14-24 could only revive a statute of

limitations period when a defendant unequivocally acknowledged a

specific debt in writing and stated that the debt would be paid

immediately or on demand.           Because defendant's letter did not

promise an immediate payment of the disputed debt, Judge Ciccone

concluded that the first three counts of the complaint were barred

by the six-year statute of limitations set forth in 
N.J.S.A. 2A:14-

1.

      Based upon plaintiff's newly-minted argument concerning the

possible application of 
N.J.S.A. 2A:14-7 to this matter, the judge

"preliminarily denied" defendant's motion for summary judgment on

counts   four   and   five,   and    invited      the   parties    to   make   new

submissions addressing the issue.               Thereafter, defendant filed

another motion for summary judgment, again asserting that counts

four and five of the complaint were barred by 
N.J.S.A. 2A:14-1.

In his response, plaintiff offered yet another new contention,

this time arguing that counts four and five raised purely equitable

claims for which there was no statute of limitations.

      After considering these contentions, Judge Ciccone rendered

an oral decision granting defendant's motion as to counts four and

five and dismissing plaintiff's complaint.                 The judge found that

the   twenty-year     statute       of       limitations     for   real    estate

transactions did not apply because plaintiff never demonstrated

                                         5                                A-4418-15T3
that Mildred held any "interest or possessory right to real

estate."    Therefore, the judge determined that these counts were

also actions at law that were barred by the six-year statute of

limitations.    This appeal followed.

     With one exception,5 plaintiff presents the same arguments on

appeal that he unsuccessfully raised before Judge Ciccone.                Our

standard of review on appeal is well established.            We review a

trial court's order granting summary judgment de novo, applying

the same standard the trial court applies, namely, the standard

set forth in Rule 4:46-2(c).         Conley v. Guerrero, 
228 N.J. 339,

346 (2017).

     We have considered plaintiff's contentions in light of the

record and applicable legal principles and conclude they are

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion.    R. 2:11-3(e)(1)(E).      We are satisfied that Judge Ciccone



5
  For the first time on appeal, plaintiff asserts that defendant's
December 31, 2008 letter to Mildred was another act of fraud under
count two of his complaint because defendant agreed to return the
$450,000 and then never did. However, in addition to failing to
raise this claim in opposition to defendant's two motions for
summary judgment, plaintiff never even made this allegation in his
complaint. We ordinarily decline consideration of an issue not
properly raised before the trial court, unless the jurisdiction
of the court is implicated or the matter concerns an issue of
great public importance. Zaman v. Felton, 
219 N.J. 199, 226-27
(2014) (citing Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234
(1973)). Neither situation exists here and, therefore, we do not
consider plaintiff's contention on this point.

                                      6                              A-4418-15T3
properly    granted      summary    judgment       to   defendant,     and    affirm

substantially for the reasons expressed in her written and oral

opinions.    However, we add the following brief comments.

     The judge correctly found that all of plaintiff's claims were

barred by the six-year statute of limitations.                  Defendant withdrew

the money from the joint account in June 2001, and plaintiff did

not file his claims until October 2014, over seven years after the

expiration of the limitations period in June 2007.                     Defendant's

December    31,   2008     letter   to     Mildred      did    not   re-start      the

limitations period under 
N.J.S.A. 2A:14-24.                   That statute states:

                 In actions at law grounded on any simple
            contract, no acknowledgment or promise by
            words only shall be deemed sufficient evidence
            of a new or continuing contract, so as to take
            any case out of the operation of [the
            applicable statute of limitations], or to
            deprive any person of the benefit thereof,
            unless such acknowledgment or promise shall
            be made or continued by or in some writing to
            be signed by the party chargeable thereby.

     "In addition to the requirement of a writing[,] it is also

necessary that the acknowledgment relied upon be such as in its

entirety fairly supports an implication of a promise to pay the

debt immediately      or    on   demand."          Denville     Amusement    Co.    v.

Fogelson,   
84 N.J.     Super.   164,     170    (App.     Div.   1964)   (citing

Bassett v. Christensen, 
127 N.J.L. 259, 261 (E. & A. 1941).                    Thus,

in order "[t]o constitute a promise to pay sufficient to remove


                                         7                                   A-4418-15T3
the bar of the statute of limitations the promise [also] must be

unconditional and unqualified."     Evers v. Jacobsen, 
129 N.J.L. 89,

91 (E. & A. 1942) (emphasis added).

     Defendant's December 31, 2008 letter did not meet this test.

He did not promise to repay any money to Mildred immediately or

on demand.     He also qualified his statement by saying he would

"refund   [Mildred's]   advance"   only   after   he   sold   one   of   two

properties at some unknown date in the future.           It is not even

clear whether defendant's letter was referring to the $450,000

from the joint account, or some other "advance."               Therefore,


N.J.S.A. 2A:14-24 was clearly not applicable.

     The judge also properly rejected plaintiff's assertion that

there was no statute of limitations for counts four and five

because they were equitable, rather than legal, claims.               It is

well settled that when an individual has an adequate remedy at law

based on a set of facts, but allows the applicable limitations

period to expire, he or she cannot revive the claim merely by

seeking alternate equitable relief based upon that same set of

facts.    Partridge v. Wells, 
30 N.J. Eq. 176, 178-80 (Ch. 1878),

aff’d sub nom., Wells v. Partridge, 
31 N.J. Eq. 362 (E. & A. 1879).

Rather, the court must ask: "Had the suitor a remedy at law which

he has lost?    If the complainant . . . had a complete remedy at

law, which has been lost by lapse of time, he is not entitled to

                                   8                                A-4418-15T3
the remedy he seeks here."   Id. at 179.   Because plaintiff had a

complete remedy at law, which he lost by allowing the statute of

limitations to lapse, he was not entitled to pursue an equitable

remedy based upon the same set of facts underlying all of his

claims.

     Finally, plaintiff specifically stated in his complaint that

Mildred had no "security or collateral, nor any ownership or

partnership interest in the Veronica Avenue [p]roject[.]"     Thus,

she plainly had no interest in any real estate involved in this

project and, therefore, the twenty-year statute of limitations

period for "[e]very action at law for real estate" under 
N.J.S.A.

2A:14-7 did not apply.   See J & M Land Co. v. First Union Nat'l

Bank, 
166 N.J. 493, 517 (2001) (making clear, after a thorough

review of the history of statutes of limitation applicable to

property actions, that the twenty-year statute of limitations in


N.J.S.A. 2A:14-7 is limited to claims asserting possessory rights

or title to real estate).

     Affirmed.




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