Donald Muenzer v. Marie Nastasi

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2024
• Docket: A-0033-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0033-23

DONALD MUENZER,

Plaintiff-Appellant,

v.

MARIE NASTASI,

Defendant-Respondent.

Submitted June 5, 2024 – Decided July 16, 2024

Before Judges Currier and Firko.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C- 000025-23.

Keith S. Barnett, PC, attorneys for appellant (Keith S. Barnett, on the briefs).

Robert Carter Pierce, attorneys for respondent (Jeff Thakker, of counsel and on the brief; Robert Carter Pierce, on the brief).

PER CURIAM The parties own a condominium and boat slip together as tenants in

common. After their relationship ended, they decided to sell the property.

Although they received several offers from prospective buyers, each party then

determined they wanted to buy out the other's interest. Plaintiff moved for

declaratory relief to compel defendant to sell him her fifty percent interest. The

court ordered partition of the property and sale to the highest bidder. Plaintiff

appeals from the April 28, 2023 order. We affirm.

When the parties acquired the condominium in September 2021, they both

lived in it as their primary residence and equally shared in the mortgage

payments and all carrying costs. The relationship ended less than a year later,

and although the parties continued to both live in the condominium, they listed

it for sale in May 2022. They lowered the price several times and received

multiple offers but did not accept any of them. The listing expired in September

2022.

The parties then entered a real estate agreement with a second real estate

agent providing for a four percent commission if the agent sold the property by

March 31, 2023. The agreement also stated: "No commission is due if either

seller buys the other out."

A-0033-23 2 Over the next several months, the parties made offers and counteroffers to

each other to buy the property. They also had offers from third parties which

they did not accept.

On February 7, 2023, plaintiff filed a verified complaint and order to show

cause (OTSC) seeking partition of the property and declaratory relief.

Defendant's opposition papers were due March 31, 2023. In an April 4, 2023

certification, defendant stated that because she had been unable to find another

residence, she was now offering the market value of the property minus the four

percent commission. This was $1,000 more than the most recent third-party

offer. Plaintiff's last offer prior to the submission of the OTSC was lower.

During oral arguments on April 28, 2023, the court framed the issue and

asked questions of both counsel. Both parties wanted to buy the property. In

addition, counsel stated the parties agreed to an order of partition.

The judge stated he intended to order partition of the property, and the

party that offered the highest price would buy out the other's interest. The judge

advised he was not ordering defendant to sell the property, as requested by

plaintiff, because she was permitted to change her mind regarding her intentions.

The judge further stated that each party would have ten days to decide if they

wanted to match or outbid the other party's offer. The court entered an order on

A-0033-23 3 April 28, 2023, ordering the partition and sale of the property to the highest

bidder. The court denied plaintiff's subsequent motion for reconsideration.

On appeal, plaintiff contends the court failed to entertain oral argument

and to articulate specific findings of facts and conclusions of law. In addition,

the court erred in considering defendant's April 4, 2023 sur-reply certification.1

We see no merit to these contentions and discern no reason to disturb the court's

order.

Plaintiff does not challenge the order for partition; indeed, plaintiff sought

that relief in the OTSC and both counsel agreed that was the proper recourse.

He asserts the court erred in not compelling defendant to sell him her interest in

the property. However, he proffers no meritorious reasons to support his

position.

Oral argument took place, as evidenced by plaintiff's filing of the

transcript of the proceedings. Plaintiff's counsel was present and vigorously

argued plaintiff's position. The court evidenced its knowledge of the facts and

asked both counsel questions. When the court advised it intended to order the

partition of the property, counsel agreed.

1 Plaintiff does not appeal from the denial of the motion for reconsideration. A-0033-23 4 The court also advised it was not compelling defendant to sell her interest

because she and defendant were equally entitled to make offers. The trial court

stated the parties owned the property equally "and the highest and best price is

really what [they] . . . should abide by." Therefore, the court provided its reasons

for denying plaintiff's requested relief of declaratory judgment.

The court did not abuse its discretion in considering defendant's April 4,

2023 certification. In the Chancery Division's scheduling order, defendant had

until March 31, 2023 to file responsive papers. Plaintiff was permitted to reply

to the submission. Although defendant's certification was not filed until April

5, the hearing did not take place until April 28. There was ample time for

plaintiff to respond to the certification. Moreover, plaintiff did not object to the

submission. The court did not abuse its discretion in considering the April 4

certification.

After considering the submissions and counsel's arguments, the court

ordered a logical, reasonable, commonplace solution. N.J.S.A. 2A:56-2

authorizes a partition by sale. The court determined the property would be sold

to the party who presented the highest bid. Each party would have an

opportunity to match and outbid the other. "[T]he 'manner in which partition is

effected' is within the discretion of the court." Greco v. Greco, 160 N.J. Super.

A-0033-23 5 98, 102 (App. Div. 1978) (quoting Newman v. Chase, 70 N.J. 254, 263 (1976)).

Remedies include "a forced sale of the property and division of the net proceeds

between the parties." Mitchell v. Oksienik, 380 N.J. Super. 119, 128 (App. Div.

2005). We can see no more simple and fair resolution to this uncomplicated

issue.

Affirmed.

A-0033-23 6