Faulk v. Martucci

• Decision Date: 26 January 2021
• Docket Number: DOCKET NO. A-2234-19T1
• Parties: JANETTE FAULK, as guardian of the person of HARRY FAULK, a/k/a HAROLD C. FAULK, an adjudged incapacitated person, Plaintiff-Respondent, v. ANNE MARTUCCI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

JANETTE FAULK, as guardian of the person of HARRY FAULK,a/k/a HAROLD C. FAULK, an adjudged incapacitated person, Plaintiff-Respondent, v. ANNE MARTUCCI, Defendant-Appellant.

DOCKET NO. A-2234-19T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 11, 2021

January 26, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000160-18.

Genova Burns, LLC, attorneys for appellant (Matthew I.W. Baker, of counsel and on the briefs).

Vincent J. LaPaglia, attorney for respondent.

PER CURIAM

Defendant Anne Martucci (Anne) appeals from a December 24, 2019 order awarding a constructive trust in favor of plaintiff Janette Faulk (Janette) as guardian of Harry Faulk (Harry), an adjudged incapacitated person. We affirm.

Harry began his career in construction demolition and later transitioned to heavy-equipment and machinery scrap sales. He operated Quick Way Contracting Company (Quick Way) on property located on Tax Block 284, Lots 9.01, 10.02, 9.03, and 11.04 in Kearny. Lots 9.01 and 10.02 are referred to as the "front lots," while Lots 9.03 and 11.04 are referred to as the "back lots" of the property colloquially known as the Meadows.

In the 1980s, Harry was a member of Harrison Station, a partnership compromised of Harry and two others. On January 11, 1982, Harrison Station purchased the front lots for $50,000 from Erie Lackawanna Railway Company. Thereafter, Harry purchased the lots from Harrison Station. Ralph Fucetola, Esq. (Fucetola), Harry's friend and personal attorney, represented him in the transaction.

Anne worked as Harry's secretary and bookkeeper. Harry was previously married but never divorced. Anne and Harry's professional relationshipeventually became a personal one. The two had a martial-type relationship for forty years.

On December 1, 1983, Fucetola created Edgar-Charles Realty Corporation (Edgar-Charles) for Harry with Anne as incorporator and co-trustee, along with Harry's sister, June Ochsner (June). On April 12, 1984, Harry transferred title to the front lots to Edgar-Charles for nominal consideration. Fucetola represented both Harry and Edgar-Charles in the transaction. When the back lots became available for purchase in 1984, Fucetola again represented both parties in the transaction.

From 1983 onward, Harry operated Quick Way on the premises. Edgar-Charles did not use or maintain the property, it conducted no business other than holding legal title to the Meadows, and it did not have a bank account.

On June 6, 1987, June's attorney resigned her subscription in Edgar-Charles and received nothing from her subscription. On June 23, 2005, defendant, for Edgar-Charles, transferred the back lots to Anne Martucci, Inc. by quitclaim deed for nominal consideration. The deed made no mention of how the grantor acquired its interest. Defendant conceded that Harry did not acknowledge the transfer of title of the front lots in writing.

In 2014, Harry suffered a stroke which rendered him physically and mentally incapacitated. Thereafter, on April 13, 2015, on behalf of Edgar-Charles, defendant deeded the front lots to herself for nominal consideration. That same day, Anne Martucci, Inc., deeded the back lots to herself for nominal consideration, therefore assuming complete and personal ownership of the Meadows.

In August 2018, Harry's daughter Janette sought and was granted appointment as guardian of Harry. After learning of the contested interest in the property, and acting as guardian of the person, plaintiff filed her complaint on October 10, 2018, seeking to void defendant's legal title to the Meadows. On November 28, 2018, defendant filed a motion to dismiss for lack of standing, which plaintiff opposed. On January 4, 2019, the trial judge entered an order denying the motion. Thereafter, on January 15, 2019, defendant filed her answer.

Judge Jeffrey R. Jablonski presided over a bench trial from August 26, 2019 to August 28, 2019. Thereafter, on December 24, 2019, the judge entered the order under review and rendered a comprehensive written opinion. The judge found that Harry retained an equitable interest in the property and that Anne wrongfully transferred the property to herself. After imposing theconstructive trust for Harry, he ordered Anne to transfer the property and provide an accounting, which the judge gave Janette the right to recover.

On February 5, 2020, defendant filed this appeal. According to the notice of appeal and the case information statement (CIS), defendant appeals exclusively from the December 24, 2019 order.

On appeal, defendant raises the following arguments for this court's consideration:

POINT I

THE PLAINTIFF, AS STATUTORY GUARDIAN OF THE PERSON OF HARRY . . . , LACKED STANDING TO INSTITUTE THIS ACTION SEEKING RECOVERY OF PROPERTY ALLEGED TO HAVE BEEN HELD IN CONSTRUCTIVE TRUST BY DEFENDANT RESULTING FROM TRANSFERS OVER THIRTY-FIVE YEARS AGO. RATHER, THAT POWER RESIDED EXCLUSIVELY IN THE APPOINTED GUARDIAN OF [HARRY'S] PROPERTY[.]

POINT II

THE TRIAL JUDGE ERRED IN CONCLUDING THAT PLAINTIFF HAD SUSTAINED HER BURDEN OF PROVING, BY CLEAR AND CONVINCING EVIDENCE, THE ELEMENTS REQUIRED FOR IMPOSITION OF A CONSTRUCTIVE TRUST. AS A RESULT, DEFENDANT'S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED[.]

POINT III

THE TRAL [JUDGE'S] OPINION IS SO FATALLY FLAWED, INCLUDING UNSUPPORTED ASSERTION[S] OF FACT AND ERRONEOUS CONCLUSIONS OF LAW, THAT IT MUST BE SET ASIDE[.]

POINT IV

THE CASE SHOULD HAVE BEEN, AND MUST NOW BE, DISMISSED ON THE BASIS OF LACHES[.]

POINT V

THE TRIAL [JUDGE] COMMITTED PREJUDICIAL ERROR BY PERMITTING THE CROSS-EXAMINATION OF DEFENDANT'S SOLE AND CRUCIAL WITNESS, AN ATTORNEY, ON PROFESSIONAL ETHICS VIOLATIONS COMMITTED BY HIM OVER A PERIOD OF YEARS, NONE OF WHICH TOUCH ON THE SUBJECT MATTER OF HIS TESTIMONY AND THEREBY DID NOT SERVE TO IMPEACH HIM. IT WAS ALSO ERROR TO PERMIT IMPEACHMENT OF THAT WITNESS BY HIS FAILURE TO OBTAIN A WRITTEN WAIVER OF A POTENTIAL CONFLICT OF INTEREST, WHEN THE RULES OF PROFESSIONAL CONDUCT APPLICABLE AT THE TIME DID NOT REQUIRE A WRITTEN WAIVER[.]

Defendant also raises the following arguments in reply, which we have renumbered:

POINT [VI]

PLAINTIFF LACKED STANDING TO INSTITUTE AND PROSECUTE THIS ACTION.

A. The Issue is Properly Before this Court.

B. On the Merits, the [T]rial [Judge's] Ruling [W]as [I]n [E]rror.

POINT [VII]

PLAINTIFF FAILED TO PROVE AN ACTIONABLE WRONGFUL ACT.

POINT [IX]

THE TRIAL [JUDGE'S] OPINION CONTAINS SO MANY ERRORS THAT IT CANNOT BE RELIED UPON TO SUPPORT THE JUDGMENT.

POINT [X]

LACHES SHOULD HAVE BARRED THE RELIEF GRANTED TO PLAINTIFF.

POINT [XI]

DEFENDANT WAS GREVIOUSLY PREJUDICED BY THE IMPROPER CROSS-EXAMINATION OF . . . FUCETOLA.

We reject defendant's arguments and affirm.

I.

We first reject defendant's argument that plaintiff lacked standing to institute this action. Although we conclude the issue is not before this court, even if it was, plaintiff has statutory standing as Harry's guardian of the person to seek recovery of property held in constructive trust by defendant.

Rule 2:5-1(e)(3)(i) requires defendant to "designate the judgment, decision, action or rule, or part thereof appealed from" in the notice of appeal. "[W]e review 'only the judgment or orders designated in the notice of appeal.'" Kornbleuth v. Westover, 241 N.J. 289, 298-99 (2020) (quoting 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004)). It is those orders and judgments alone "which are subject to the appeal process and review[.]" 1266 Apartment Corp., 368 N.J. Super. at 459 (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd, o.b., 138 N.J. 41 (1994)); see Park Crest Cleaners, LLC v. A Plus Cleaners and Alterations Corporation, 458 N.J. Super. 465, 472 (App. Div. 2019) (noting that "a party's failure to seek review of cognizable trial court orders or determinations . . . by identifying them in the notice of appeal . . . is largely fatal").

Here, the only order accompanying defendant's notice of appeal is the December 24, 2019 order. Defendant did not include the January 4, 2019 orderdenying defendant's motion to dismiss based on standing grounds in the notice of appeal or appendix. While defendant did mention the issue in the CIS as one of the issues being appealed, brief inclusion in the CIS alone is insufficient as a matter of procedure. Cf. Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J. Super. 577, 588 (App. Div. 2007) (court permitted consideration of an order granting partial summary judgment that was identified as an order being appealed in the CIS where the issue of the validity of the exculpatory clause was also listed as the primary issue on appeal). The issue of standing is therefore not before this court on appeal. We nevertheless add the following remarks about plaintiff's standing as Harry's guardian of the person.

"Standing is not a jurisdictional issue in New Jersey," Capital One, N.A. v. Peck, 455 N.J. Super. 254, 259 (App. Div.), certif. denied, 235 N.J. 469 (2018), but merely "an element of justiciability[.]" Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 102 (App. Div. 2012) (quoting New Jersey Citizens Action v. Riviera Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997)). To have standing to raise an issue, "a party must have 'a sufficient stake and real adverseness with respect to the subject matter of the litigation.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (App. Div. 2001) (quoting In re Adoption of Baby T., 160 N.J. 332, 340 (1999)). "Standing has been broadlyconstrued in New Jersey as '[the] courts have considered the threshold for standing to be fairly low.'" Ibid. (quoti...