IN RE THE ESTATE OF RALPH A. GALLEGAN (199831, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4256-17T4
IN RE THE ESTATE OF
RALPH A. GALLEGAN,
Deceased.
_________________________
Submitted March 6, 2019 – Decided June 26, 2019
Before Judges Fuentes and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. 199831.
William J. Gearty, attorney for appellant Thomas
Gallegan.
Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC,
attorneys for respondent The Estate of Ralph A.
Gallegan (Jay Holub, on the brief).
PER CURIAM
Ralph A. Gallegan1 died testate in Delaware, leaving his estate to seven
of his nine children, including Donna and appellant Thomas; he excluded two
sons, including William. At the time of his death, Ralph owned real property in
New Jersey commonly known as 24 Cornell Road, South Toms River (Cornell
Road) and 305 Lillian Lane, Toms River (Lillian Lane). He solely owned
Cornell Road. On June 23, 2006 he deeded Lillian Lane to himself and Donna
as joint tenants with right of survivorship.
In response to a verified complaint filed in the Chancery Division by the
administrator of Ralph's estate for instructions as to Cornell Road and burial
plots located in New Jersey, 2 Thomas filed a counterclaim alleging in count one
that Donna, upon the June 2006 conveyance of Lillian Lane, executed a
mortgage to Ralph and "the agreement[] between those parties provided that
from the net payments due on her mortgage obligation, there would be an annual
distribution from Donna . . . to each of [Ralph's] children to coincide with the
commencement of the Christmas shopping season." Thomas demanded
1
We use the given names of the Gallegan clan, including those who now have
different surnames, to avoid confusion. We mean no disrespect or familiarity
by our practice.
2
That complaint was resolved by way of consent order and is not the subject of
this appeal.
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production of the mortgage and documents relating thereto, an accounting of
monies due him and sale of the property with the proceeds applied to satisfy his
counterclaim. He also demanded in count three, among other relief, that the
court instruct the administrator to withhold distribution of estate assets until the
counterclaim was satisfied. 3
Thomas appeals from the trial court's orders: granting respondent Ralph's
estate's summary judgment motion and dismissing Thomas's counterclaim;
denying his motion to reconsider that order; and awarding attorneys' f ees and
costs pursuant to Rule 1:4-8. He argues the trial court erred in granting summary
judgment because it failed to employ the proper burden of proof in determining
whether a material fact issue existed; evaluated the credibility of witnesses in
determining the existence of material facts; and material facts existed which
precluded entry of summary judgment.
3
In count two of his counterclaim, Thomas demanded an accounting of rents
from his sisters, Anna and Diane, who he alleged were living in Cornell Road
without paying rent to Ralph's estate. Thomas did not brief any issue relating to
this count. "An issue not briefed on appeal is deemed waived." Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); 539 Absecon Blvd., L.L.C.
v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div. 2009)
(noting claims that have not been briefed are deemed abandoned on appeal).
We therefore will not address the grant of summary judgment as to that count.
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We review the grant of summary judgment, under the same Rule 4:46-2(c)
standard that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment must be
granted if the court determines "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). We "consider whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). We review the trial court's decision in these matters
de novo, and afford the trial court ruling no special deference. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We agree
that the trial court did not consider the proofs through the appropriate lens and
reverse.
The trial court ruled, "[m]y findings of fact will adopt and incorporate [the
estate's] statement of undisputed material facts . . . that was submitted by [the
administrator] as if more fully set forth herein." The court continued, "I find
they are both credible and well documented. Therefore I will incorporate those
findings of fact." The court's adoption of the administrator's submission did not
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analyze Thomas's contentions. The record reveals Thomas submitted a
statement of disputed facts that countered many of those submitted by the
administrator. It was improper on summary judgment for the trial court to find
the administrator's facts credible. The proper analysis called for the court to
determine whether the competent evidence, under the light most favorable to
Thomas, was sufficient to warrant the submission of the matter to a jury for
determination.
We also perceive the record contains disputed facts that preclude entry of
summary judgment. The trial court, rightly concluded Thomas's "speculation
that a mortgage existed on June 23 . . . , 2006 is not supported by the record" –
a fact conceded by Thomas in his merits brief – but then stated that he "has only
produced self-serving certifications of his wife and family members stating they
had knowledge of the existence of an obligation."
The court conflated the non-existence of a mortgage document with the
record evidence that a payment obligation existed. The obligation, in the light
most favorable to Thomas, need not have been tied to a mortgage document.
Contrary to the estate's contention in its merits brief that the obligation had to
be proven, Thomas needed only present competent proof of the obligation in
order to defeat summary judgment.
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Donna's contentions are set forth in her deposition testimony that is
included in the record. She admitted in depositions that she paid Ralph monthly
rent in the amount of $850 after she moved into Lillian Lane in 2002.
Subsequent to the June 2006 conveyance, Donna wanted her brother William to
live in Lillian Lane; Ralph objected. Donna told Ralph it was her house and she
could do with it what she wanted. Ralph responded, "it's not your house until I
die." After "a couple of weeks arguing," Donna told Ralph "I'll go and see what
the going rate of the houses are around here and I will pay you that because I
don't want you to tell me what I could do in my house." She said she "would
pay him that so [William] could live there." She "didn't want [William] living
on the streets. That's where the amortization table came in. And that's when
[she] started paying [Ralph $]1389.83."
Donna deposed that after ascertaining the value of Lillian Road –
approximately $175,000 – Donna printed a fifteen-year amortization table, dated
February 2007, for that amount; the monthly payment was $1389.83. Donna
said that she told Ralph that she was "going to pay [him] that amount and
everything was to cease when he died, and that's why it ceased when he died."
When asked if that arrangement was ever reduced to writing, Donna said, "No.
This was a verbal thing between me and my father." When asked what Ralph's
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"reaction [was] to the offer," she replied, "He cashed the checks when he felt
like it." The estate's "Statement of Undisputed Material Facts" – that was
adopted by the trial court – claims "[t]he only debt that would be owed to her
father from [Donna] was during his lifetime to supplement his income and it
would cease upon his death."
Thomas contends that his father told him the monthly payments would
continue after Ralph's death and would be paid annually as alleged in count one
of his counterclaim. Thomas certified that Ralph showed him and his siblings
"a large list of the dates of the payments and the amount expected to be made
by Donna." The record also reveals the administrator sent a letter to Donna
asking her the purpose of "an amortization schedule [found in Ralph's residence
after his death] that was sent to [Ralph] by [her] on January 6, 2007" that
"appear[ed] to be related to a fairly sizeable loan." Donna identified handwriting
on the amortization schedule next to the payment listed for March 2007 as
Ralph's; he wrote, "FIRST PAYMENT." Next to the February 2007 payment,
Ralph wrote: "RENT PAYMENT." Donna said her first payment of $1383.89
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was made in March, not February, 2007 4 and that she was paying that amount
"predicated on the value of the whole house."
Other evidence in the record includes an exhibit to the administrator's
certification submitted in support of the estate's summary judgment motion:
copies of four checks – dated February 1, 2007; December 1, 2007; January 1,
2008; and June 1, 2008 – bearing Donna's purported signature, each written to
Ralph for $1383.89. "Mortgage Payment" is handwritten in the memo section
of the June 1, 2008 check. "Mortgage" is handwritten in the memo section of
the February 1, 2007 check. Thomas also submitted other sworn statements
from his wife, sister and from Ralph's brother and his wife evidencing that Ralph
stated his intention that Donna's payment would continue after his death to the
beneficiaries of his last will and testament.5
The record supports the disputed claim that Donna agreed to pay $1383.89
beginning in 2007. The absence of a mortgage document does not obviate that
4
The estate's "Statement of Undisputed Material Facts" claims "[t]he first
payment of $1,389 was February 2007." A copy of a check for $1383.89, dated
February 1, 2007, was attached to the administrator's certification in support of
the summary judgment motion; "VOID" was thrice handwritten on the check.
5
Although Thomas mentions six sworn statements in his merits brief, the record
reveals certifications and notarized statements from five, not six, family
members: Thomas; his wife, Nancy; his sister, Theresa; Ralph's brother, John,
and his wife, Toni.
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disputed fact. The agreement was made after the transfer of title so it is of no
moment that a mortgage securing the obligation was not made or recorded. It
did not arise from the transfer of title but from Donna's reaction to the 2007
dispute about William living at Lillian Road. Donna admitted the agreement
was verbal. Two of Donna's checks attached to the administrator's certification
denote that they are for "mortgage" payments. That same term was used by John
and Toni in their notarized letter to describe the payments Ralph said were to
continue after his death. The nomenclature does not require the obligation to be
tethered to a mortgage. Although payments under the obligation were labeled
mortgage payments, it is a disputed fact that Donna was obligated to make the
payments set forth in the amortization schedule. The trial court erred in granting
summary judgment because there was no evidence of a mortgage. There was
evidence of an obligation.
That obligation was supported by more than "self-serving" certifications,
the term used by the trial court to describe the sworn statements Thomas
proffered. In Chicago Title Insurance Co. v. Ellis, 409 N.J. Super. 444 (App.
Div. 2009), plaintiff – which sought to recoup funds from parents whose
daughter had defrauded a bank and given substantial funds to the parents –
contended that one parent's affidavit that the funds were actually a loan
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repayment was insufficient to defeat summary judgment because there was "no
documentary support for the alleged loan and it [was] merely a 'self-serving'
declaration." Id. at 463. We rejected that contention and determined, "[w]hether
self-serving or not, [the parent's] sworn statement that there was a loan to her
daughter is admissible evidence and sufficient to create a disputed issue of fact
about whether she gave fair value for the . . . payment, namely discharge of a
debt." Ibid.The same holds true in this case. As Thomas observes in his merits brief,
John and Toni were not named in Ralph's will; they had nothing to gain and their
notarized letter is not self-serving. Moreover, there was documentary and other
support for Donna's obligation; the annotated amortization schedule and checks,
as well as Donna's deposition testimony, present sufficient proof of an obligation
to preclude summary judgment.
To be sure, the nature and terms of the agreement are uncertain. Why did
Donna continue to pay rent after she was added to the deed? If the reason for
the increase from $850 to over $1300 was linked to William's residence, why
were payments amortized out over fifteen years? And why were they amortized
over that period if they were to end when Ralph passed? And were the payments
to cease after his death or continue to be paid to Ralph's heirs?
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The fact-finder should resolve any issues regarding Donna's alleged
obligation. These issues should not have been decided on summary judgment.
As such, we reverse the dismissal of count one and the related portion of count
three of Thomas's counterclaim.
In light of our determination that summary judgment was improvidently
granted, we also reverse the award of attorneys' fees that the trial court ordered
Thomas to pay under Rule 1:4-8. Because that award was made against a party,
and not the attorney, N.J.S.A. 2A:15-59.1 is implicated. Toll Bros., Inc. v. Twp.
of W. Windsor, 190 N.J. 61, 70 (2007) (recognizing that "Rule 1:4-8 'governs
the procedure for fee applications both against parties under [N.J.S.A. 2A:15 -
59.1] and against lawyers under [Rule 1:4-8]'" (alterations in original) (quoting
Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div.
2001))). We note the trial court made no finding that Thomas acted in bad faith.
In Ferolito v. Park Hill Association, 408 N.J. Super. 401, 408 (App. Div. 2009),
we determined that when an application is made by a prevailing defendant
pursuant to N.J.S.A. 2A:15-59.1(b)(2) "and the plaintiff is represented by an
attorney, an award cannot be sustained if the 'plaintiff did not act in bad faith in
asserting' or pursuing the claim." Id. at 407-08 (quoting McKeown-Brand v.
Trump Castle Hotel & Casino, 132 N.J. 546, 549 (1993)). We concluded,
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a grant of a motion for summary judgment in favor of a
defendant, without more, does not support a finding
that the plaintiff filed or pursued the claim in bad faith.
"[T]he burden of proving that the non-prevailing party
acted in bad faith" is on the party who seeks fees and
costs pursuant to N.J.S.A. 2A:15-59.1.
[Id. at 408 (alteration in original) (citation omitted)
(quoting McKeown-Brand, 132 N.J. at 559).]
If the issue arises again, in determining whether fees are warranted, the
trial court should ensure that the moving party complies with the procedures
fully limned in Ferolito and Toll Brothers.
We note Thomas did not address the denial of his motion for
reconsideration in his merits brief. Though issues not briefed are usually
deemed abandoned, Lushis, 417 N.J. Super. at 657, our reversal of the grant of
summary judgment renders the appeal of the reconsideration motion moot.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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