L. JOSEPH BURKE VS. ANNA BERNARDINI (C-000073-16, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2955-16T1
L. JOSEPH BURKE,
Plaintiff-Appellant/
Cross-Respondent,
v.
ANNA BERNARDINI,
Defendant-Respondent/
Cross-Appellant.
___________________________
Argued telephonically March 27, 2018 –
Decided July 13, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, Docket No.
C-000073-16.
Jay H. Greenblatt argued the cause for
appellant/cross-respondent (Greenblatt &
Laube, PC, attorneys; Jay H. Greenblatt, on
the brief).
Jonathan Edward Ingram argued the cause for
respondent/cross-appellant (Borger Matez, PA,
attorneys; Bruce P. Matez and Jonathan Edward
Ingram, on the briefs).
PER CURIAM
Plaintiff L. Joseph Burke and defendant Anna Bernardini were
involved in a romantic relationship, during which Burke purchased
property on which he built a house where they would reside
together. The original deed to the property conveyed title to
Burke only, but pursuant to the parties' written agreement, Burke
executed and recorded a deed conveying title to himself and
Bernardini as joint tenants with right of survivorship. After
Burke ended the relationship, he filed a complaint in the Chancery
Division, General Equity Part, seeking, in part, to compel
Bernardini to convey her interest in the property to him without
payment under a joint venture theory. Bernardini filed a
counterclaim for partition and counsel fees.1
Burke appeals from that part of the February 17, 2017 order,
which granted summary judgment to Bernardini on her partition
claim, and the February 23, 2017 judgment for partition.
Bernardini cross-appeals from the March 10, 2017 order, which
denied her motion for counsel fees. We affirm.
1
In count two of her counterclaim, Bernardini asserted a claim
for palimony and breach of contract. She subsequently dismissed
that count with prejudice.
2 A-2955-16T1
I.
We derive the following facts from the evidence submitted
by the parties in support of, and in opposition to, the summary
judgment motion, viewed in the light most favorable to the party
who opposed entry of summary judgment. Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135 (2017).
The parties knew each other for approximately twenty-five
years before they began dating in March 2009. At that time, Burke
resided at his home in Milmay and Bernardini resided at her
daughter's condominium in Marlton.
In September 2010, Burke began residing with Bernardini in
the Marlton condominium, where they paid the rent and utilities
equally. In November 2010, Burke returned to reside at his home
in Milmay and Bernardini continued residing in the Marlton
condominium. They continued their relationship.
In November 2011, the parties agreed to lease a condominium
in Margate for a one-year term, and share expenses. In January
2012, defendant began paying Bernardini's share of the expenses
after she became financially unable to do so.
In November 2012, Bernardini was helping her daughter
establish a salon in Marlton. She began residing in a condominium
her son leased for her across from her daughter's condominium and
3 A-2955-16T1
Burke returned to his home in Milmay. They continued their
relationship.
In 2013, the parties discussed residing together, and Burke
listed his home in Milmay for sale. After the home sold in 2014,
Burke resided at his daughter's home in Egg Harbor. He purchased
property in Berlin and built a house on it. He paid $368,000 for
the property and approximately $100,000 for improvements and
additions to the house. Both parties contributed furnishings.
Prior to the closing of title, on September 15, 2014, the
parties executed an agreement, which provided as follows, in
pertinent part:
Promise to Bernardini. Burke acknowledges and
agrees that Bernardini has provided, and will
continue to provide companionship to him of
an indefinite length. Burke promises and
represents that upon [c]losing, the [h]ome
shall be deeded and titled in the name of
"Burke and Bernardini, as joint tenants with
the right of survivorship," in accordance with
N.J.S.A. 46:3-17.1.
The agreement also provided: "Burke warrants and represents that
Bernardini shall have no financial obligations for the [h]ome,
including, but not limited to, property taxes, [homeowners]
association fees, and homeowners insurance[,]" and "Burke warrants
and represents that he has entered into this [a]greement
volitionally and of his free will."
4 A-2955-16T1
The closing of title occurred on September 25, 2014. Contrary
to the agreement, the deed to the property conveyed title only to
Burke. The parties then executed an amended agreement on October
3, 2014, which provided as follows, in pertinent part:
Promise of Burke. Burke acknowledges and
agrees that Bernardini has provided, and will
continue to provide companionship to him of
an indefinite length. Burke promises that
within [forty-five] days from the execution
of this [a]greement, or as soon as reasonably
possible, the existing deed to the [h]ome
shall be modified to be "Burke and Bernardini,
as joint tenants with the right of
survivorship," in accordance with N.J.S.A.
46:3-17.1.
[(Emphasis added).]
The agreement also provided: "Burke warrants and represents that
he has entered into this [a]greement volitionally and of his free
will[,]" and that the agreement was "intended to set forth the
entire understandings between the [p]arties[.]"
In accordance with both agreements, on November 17, 2014,
Burke, as grantor, executed a deed to himself and Bernardini as
grantees, conveying title to the property to them as "joint tenants
with the right of survivorship." The deed expressly provided:
"The [g]rantor, by his signature below, evidences his intention
to convey the [p]roperty to the [g]rantees, as joint tenants with
the right of survivorship, and not as community property nor
5 A-2955-16T1
tenants in common." (Emphasis added). The deed was recorded in
the Camden County Clerk's Office on December 19, 2014.
The parties began residing in the Berlin house in January
2015. In accordance with the agreements, Burke paid the utility
bills, cost of repairs and maintenance, and all other costs
associated with the house.
In February 2016, Burke ended the relationship and moved out
of the house. He then instituted the present action to compel
Bernardini to convey her one-half ownership interest to him without
any payment for her one-half ownership interest. He alleged "[t]he
transfer of title to [Bernardini] jointly was for the purpose of
giving [Bernardini] the security of a right of survivorship
conditioned on the maintenance and continuance of the amicable
relationship and companionship that had been promised for an
indefinite length of time[,]" and the condition was not fulfilled.
He also alleged the parties entered into a joint venture for the
purchase and maintenance of the property, which ended in February
2016. Bernardini filed a counterclaim for partition pursuant to
N.J.S.A. 2A:56-2.
Bernardini filed a motion for summary judgment on her
partition claim, and sought equal distribution of the proceeds of
the sale of the property. She also sought counsel fees pursuant
to Rule 1:4-8.
6 A-2955-16T1
Burke filed a cross-motion for summary judgment on his joint
venture claim, and requested a plenary hearing to determine the
equitable distribution of the sale proceeds based on quantum
meruit.2 In opposition, Bernardini did not dispute the property
was procured as a joint venture, but argued by deed, it became a
joint tenancy with right of survivorship and the deed controlled.
In granting summary judgment to Bernardini, the court found
the deed expressly created a joint tenancy with right of
survivorship pursuant to N.J.S.A. 46:3-17,3 not a tenancy in
common, and Bernardini had a one-half interest in the property
entitling her to equal distribution of the sale proceeds. The
2
Burke also sought summary judgment dismissing count two of
Bernardini's counterclaim for palimony and breach of contract,
which the court denied. Because Bernardini subsequently dismissed
those claims with prejudice, the issues are moot.
3
N.J.S.A. 46:3-17 provides as follows:
From and after February fourth, one thousand
eight hundred and twelve, no estate shall be
considered and adjudged to be an estate in
joint tenancy, except it be expressly set
forth in the grant or devise creating such
estate that it was or is the intention of the
parties to create an estate in joint tenancy
and not an estate of tenancy in common, any
law, usage, or decision theretofore made, to
the contrary notwithstanding.
7 A-2955-16T1
court noted that even if the deed created a tenancy in common,
Bernardini still had a right to partition.
The court rejected Burke's claim for equitable distribution
of the sale proceeds based on quantum meruit. The court found
that by executing the second deed, Burke gifted Bernardini one-
half of the value of the property and was not entitled to
reimbursement for the contributions he made to acquire, improve,
or maintain the property. The court memorialized its decision in
a February 17, 2017 order. On February 23, 2017, the court entered
a judgment for partition and ordered the equal distribution of the
net sale proceeds.4 In a March 10, 2017 order, the court denied
Bernardini's motion for counsel fees.
II.
On appeal, Burke reiterates that the property was a joint
venture and the court should have conducted a plenary hearing to
determine equitable division of the sale proceeds based on quantum
meruit. We disagree.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Conley v.
Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the
trial court did, "whether the evidence presents a sufficient
4
Prior to entry of the judgment, in a February 15, 2017 order,
the court approved the sale of the property for $435,000.
8 A-2955-16T1
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Liberty
Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46
(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 536 (1995)). Summary judgment must be granted "if the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the 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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence that creates a genuine issue of
material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory
and self-serving assertions by one of the parties are insufficient
to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citations omitted).
If there is no genuine issue of material fact, we must then
"decide whether the trial court correctly interpreted the law."
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We
9 A-2955-16T1
review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013). "[F]or mixed questions of law and fact, [an appellate
court] give[s] deference . . . to the supported factual findings
of the trial court, but review[s] de novo the lower court's
application of any legal rules to such factual findings." State
v. Pierre, 223 N.J. 560, 576-77 (2015) (citations omitted).
Applying the above standards, we discern no reason to disturb the
court's grant of summary judgment to Bernardini.
It has been long-held that:
"Where a deed is made and accepted in
pursuance of an executory contract, the law
presumes that it fully expresses the final
intentions of the parties as to so much of the
contract as it purports to execute." . . . It
is the general rule that the acceptance of a
deed for land is to be deemed prima facie full
execution of an executory agreement to convey
and that thenceforward the agreement becomes
void and the rights of the parties are to be
determined by the deed, not by the agreement.
The deed when accepted is presumed to express
the ultimate intent of the parties with regard
to so much of the contract as it purports to
execute. Covenants collateral to the deed are
exceptions to this rule.
. . . [T]he acceptance of a deed for land is
to be deemed prima facie full execution of an
executory contract to convey, unless the
contract contains covenants collateral to the
deed.
10 A-2955-16T1
[Bogert v. Citizens First Nat'l Bank & Tr.
Co., 131 N.J.L. 218, 221-22 (E. & A. 1944)
(emphasis added) (citations omitted).]
Here, even if the parties' conduct suggested a joint venture,
the subsequent agreements changed the legal nature of this
relationship. The agreements, both executed prior to Burke's
execution of the second deed, established the parties would hold
title to the property as joint tenants with the right of
survivorship and Bernardini would have no financial obligations
for the house. The agreements contained no provision preserving
the joint venture or granting Burke the right to reimbursement for
the contributions he made to acquire, improve, or maintain the
property.
Furthermore, the deed conveyed title to the property to the
parties as joint tenants with the right of survivorship, not as a
joint venture, and expressly stated this was Burke's intention.
The deed contained no covenants or conditions collateral to the
deed. Thus, even if the parties had agreed to a joint venture,
that agreement became void, and the deed, not the agreement,
determined the parties' rights. The deed expressly provided for
a joint tenancy with the right of survivorship. Thus, each party
is entitled to an equal distribution of the net sale proceeds as
a matter of law.
11 A-2955-16T1
Mitchell v. Oksienik, 380 N.J. Super. 119 (App. Div. 2005),
on which Burke relies, does not change this outcome. There, unlike
here, the unmarried parties jointly purchased property on which
they built a home, but title was taken in the defendant's name
only. Id. at 123-24. We affirmed the trial court's grant of
equitable relief to the plaintiff as a joint venturer. Id. at
127.
Nor does Baker v. Drabik, 224 N.J. Super. 603 (App. Div.
1988), on which Burke also relies, change the outcome. There,
unlike here, the unmarried parties jointly purchased property and
took title as tenants in common, not as joint tenants with the
right of survivorship. Id. at 606.5 Accordingly, summary judgment
was properly granted to Bernardini on her partition claim.
III.
On cross-appeal, Bernardini challenges the court's denial of
her motion for counsel fees pursuant to Rule 1:4-8.6
5
Burke also relies on unpublished opinions to support his joint
venture claim. However, unpublished opinions do not constitute
precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170
N.J. 39, 48 (2001); R. 1:36-3.
6
We decline to address Bernardini's additional argument that she
is entitled to counsel fees under N.J.S.A. 2A:15-59.1. She did
not raise this argument before the trial court and it is not
jurisdictional in nature nor does it substantially implicate the
public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014)
(citation omitted). We also decline to address her argument that
12 A-2955-16T1
Counsel fee sanctions under Rule 1:4-8 "are specifically
designed to deter the filing or pursuit of frivolous litigation[.]"
LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009). A second purpose
of the rule is to compensate the opposing party in defending
against frivolous litigation. Toll Bros., Inc. v. Twp. of W.
Windsor, 190 N.J. 61, 71 (2007).
A litigant seeking a counsel fee sanction under Rule 1:4-8
must file a motion "separately from other applications" describing
"specific conduct alleged to have violated this rule." R. 1:4-
8(b)(1); see also Toll Bros., 190 N.J. at 69. The motion "shall
be filed with the court no later than [twenty] days following the
entry of final judgment." R. 1:4-8(b)(2).
Prior to filing such a motion, the litigant must "serve a
written notice and demand on the attorney or pro se party, which
must include a request that the allegedly frivolous paper [or
pleading] be withdrawn." Toll Bros., 190 N.J. at 69. This notice
is generally referred to as a "safe harbor" notice. Ibid. The
"safe harbor" notice
shall (i) state that the paper is believed to
violate the provisions of this rule, (ii) set
forth the basis for that belief with
specificity, (iii) include a demand that the
paper be withdrawn, and (iv) give notice,
except as otherwise provided herein, that an
she is entitled to counsel fees under Rule 5:3-5. Counsel fees
under that rule are only cognizable in Family Part actions.
13 A-2955-16T1
application for sanctions will be made within
a reasonable time thereafter if the offending
paper is not withdrawn within [twenty-eight]
days of service of the written demand.
[R. 1:48-(b)(1).]
A litigant making a motion under Rule 1:4-8 must include a
certification that he or she served a "safe harbor" notice and
must submit a copy of the notice. R. 1:4-8(b)(1). The litigant
must also "certify that the paper objected to has not been
withdrawn or corrected within the appropriate time provided herein
following service of the [safe harbor notice]." Ibid.
The court may award "reasonable expenses and attorneys' fees"
to the prevailing party on a motion for frivolous lawsuit
sanctions. R. 1:4-8(b)(2). In order to establish reasonableness,
the moving party's attorney must submit an affidavit of services
conforming to the requirements of R.P.C. 1.5(a). The affidavit
of services must also include "a detailed statement of the time
spent and services rendered by paraprofessionals, a summary of the
paraprofessionals' qualifications and the attorney's billing rate
for paraprofessional services to clients generally[,]" and a
statement as to how much the client had paid, "and what provision,
if any, has been made for the payment of fees to the attorney in
the future." R. 4:42-9(b) and (c).
14 A-2955-16T1
Here, on July 22, 2016, Bernardini's attorney sent Burke's
what was arguably a "safe harbor" notice. However, Bernardini did
not file a Rule 1:4-8 motion separately from her motion for summary
judgment and did not include the required certification and copy
of the "safe harbor" notice. R. 1:4-8(b)(1). She also did not
file a motion no later than twenty days following the entry of
final judgment, Rule 1:4-8(b)(2), and her attorney did not submit
an affidavit of services. Failure to comply with the requirements
of Rule 1:4-8 warranted the denial of her motion for counsel fee
sanctions under Rule 1:4-8(b). State v. Franklin Sav. Account No.
2067, 389 N.J. Super. 272, 281 (App. Div. 2006).
Affirmed.
15 A-2955-16T1