NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5310-17T2
PATRICIA FALCONITE,
Plaintiff-Appellant,
v.
ZELINDA DAROCI and ROBERT DAROCI,
Defendants-Respondents,
and
WEICHERT REALTORS, CATHERINE DIFIORE, ANTHONY PALUMBO, and TROCHIANO AND PALUMBO, LLP,
Defendants. _________________________________
Argued October 16, 2019 – Decided October 25, 2019
Before Judges Fisher and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 3539-07. David A. Parinello argued the cause for appellant (Law Office of Howard S. Teitelbaum, LLC, attorneys; David A. Parinello, of counsel and on the brief).
Michael Desmond Fitzgerald argued the cause for respondents (Michael Desmond Fitzgerald, of counsel and on the brief).
PER CURIAM
Plaintiff Patricia Falconite (the buyer) filed this action in 2007 – well
over a decade ago – in the Chancery Division, alleging defendant Zelinda
Daroci (the seller), the seller of the residential property plaintiff contracted to
buy, failed to disclose the presence of a sizeable drainage easement across the
property. After nine years of litigation in the trial court – presided over by six
different judges – we reversed a summary judgment entered in the seller's
favor and remanded for trial. Falconite v. Daroci, No. A-0876-14 (App. Div.
Apr. 15, 2016). Following our remand, the matter was finally resolved after a
two-day bench trial. In his written findings, the judge determined that seller
made no material misrepresentation about the easement and, a fortiori, buyer
breached the contract by refusing to close; the judge awarded $31,653.80 in
compensatory damages in seller's favor on her breach-of-contract
counterclaim.
A-5310-17T2 2 Buyer appeals.1 She claims: (1) the adverse ruling on her equitable fraud
claim was against the weight of the evidence; (2) she was deprived of a right to
trial by jury on the seller's counterclaim; (3) she was entitled to rescission of
the contract because of the absence of a lead paint disclosure statement; and
(4) the judge's computation of damages was erroneous. We find insufficient
merit in these arguments to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only a few comments on each.
In responding to the buyer's first point, it suffices to invoke our standard
of review, which requires deference to a trial judge's findings of fact when
they are supported by credible evidence. Rova Farms Resort, Inc. v. Investors
Ins. Co., 65 N.J. 474, 483-84 (1974). The buyer has offered no principled
1 The order under review includes a provision that authorized the seller to seek fees pursuant to Rule 4:58, the offer of judgment rule. We were told at oral argument that seller made such an application but buyer's notice of appeal was filed before the judge could rule, thereby depriving the trial court of jurisdiction. See R. 2:9-1(a). The outstanding offer of judgment issue leaves us with an appeal from an interlocutory order. This circumstance should have been brought to our attention by way of either a motion to dismiss the appeal or a motion for a limited remand for that last issue's disposition. See Gordon v. Rozenwald, 380 N.J. Super. 55, 64 n.2 (App. Div. 2005). Notwithstanding the lack of finality, we could sua sponte dismiss the appeal, as is our prerogative. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 459-60 (App. Div. 2008). But, because the matter was fully briefed, has now been argued, and is otherwise ready for disposition, we exercise our discretion to rule on the appeal's merits at this time. See Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002). We feel particularly so compelled because of this case's undue longevity.
A-5310-17T2 3 reason for second-guessing the experienced and able trial judge's findings of
fact or his credibility findings.
The second point requires a longer explanation. As noted, the matter
was commenced in the Chancery Division. Early on, a chancery judge entered
an order that preserved the status quo by prohibiting movement of the contract
deposit and by restraining seller's transfer of the property in question; he later
lifted the restraint on the transfer of the property. That judge retired and
another chancery judge transferred the action to the Law Division even though
buyer's equitable claim remained undecided.
The buyer had not demanded a jury trial of any legal issues contained in
her complaint. The seller, however, in filing an answer and counterclaim, did
make such a demand. Once a jury trial demand has been included in a party's
initial pleading or asserted within the following ten days, R. 4:35-1(a), any
other party has the right to insist on a trial by jury of legal issues even if that
party did not make the demand in its pleading, R. 4:35-1(d). So, the buyer is
correct that she had a right to insist upon a trial by jury of any legal issues
notwithstanding her failure to demand that right in her pleadings. See 500
Columbia Tpk. Assocs. v. Haselmann, 275 N.J. Super. 166, 170 (App. Div.
1994).
A-5310-17T2 4 But it is also true that the right to trial by jury does not extend to
equitable claims even if legal claims are joined to the action. A jury trial
demand in a case with claims based in both law and equity requires a
determination as to whether the claims are separable or intertwined; if they are
intertwined, then the court must determine whether the equitable claims or the
law claims predominate. Sun Coast Merch. Corp. v. Myron Corp., 393 N.J.
Super. 55, 85-86 (App. Div. 2007); Boardwalk Props., Inc. v. BPHC
Acquisition, Inc., 253 N.J. Super. 515, 527-28 (App. Div. 1991). This
determination must be made with "a sensitive regard for the right to trial by
jury," Lyn-Anna Props., Ltd. v. Harborview Dev. Corp., 145 N.J. 313, 329-30
(1996), but, when the equity claim predominates, the judge may decide
subordinate law claims without empaneling a jury.
There is little question but that buyer's claim for rescission – which
sounded in equity – was the predominant issue; had buyer succeeded, the
seller's breach-of-contract counterclaim would have been eviscerated. By the
same token, the buyer's failure to prove that equity claim essentially compelled
a finding that she breached the contract, thereby entitling the seller to
damages. So, even though the judge rejected the demand for a jury trial for
A-5310-17T2 5 different reasons, we conclude that the refusal to empanel a jury was the
proper course.2
In her third point, the buyer argues that an earlier motion judge erred in
denying summary judgment on the rescission claim because of seller's failure
to provide a lead paint disclosure statement required by 42 U.S.C. § 4852d.3
The motion judge held that even if there was such a failure, it would not
compel a voiding of the contract because Congress declared that "nothing" in
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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-5310-17T2
PATRICIA FALCONITE,
Plaintiff-Appellant,
v.
ZELINDA DAROCI and ROBERT DAROCI,
Defendants-Respondents,
and
WEICHERT REALTORS, CATHERINE DIFIORE, ANTHONY PALUMBO, and TROCHIANO AND PALUMBO, LLP,
Defendants. _________________________________
Argued October 16, 2019 – Decided October 25, 2019
Before Judges Fisher and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 3539-07. David A. Parinello argued the cause for appellant (Law Office of Howard S. Teitelbaum, LLC, attorneys; David A. Parinello, of counsel and on the brief).
Michael Desmond Fitzgerald argued the cause for respondents (Michael Desmond Fitzgerald, of counsel and on the brief).
PER CURIAM
Plaintiff Patricia Falconite (the buyer) filed this action in 2007 – well
over a decade ago – in the Chancery Division, alleging defendant Zelinda
Daroci (the seller), the seller of the residential property plaintiff contracted to
buy, failed to disclose the presence of a sizeable drainage easement across the
property. After nine years of litigation in the trial court – presided over by six
different judges – we reversed a summary judgment entered in the seller's
favor and remanded for trial. Falconite v. Daroci, No. A-0876-14 (App. Div.
Apr. 15, 2016). Following our remand, the matter was finally resolved after a
two-day bench trial. In his written findings, the judge determined that seller
made no material misrepresentation about the easement and, a fortiori, buyer
breached the contract by refusing to close; the judge awarded $31,653.80 in
compensatory damages in seller's favor on her breach-of-contract
counterclaim.
A-5310-17T2 2 Buyer appeals.1 She claims: (1) the adverse ruling on her equitable fraud
claim was against the weight of the evidence; (2) she was deprived of a right to
trial by jury on the seller's counterclaim; (3) she was entitled to rescission of
the contract because of the absence of a lead paint disclosure statement; and
(4) the judge's computation of damages was erroneous. We find insufficient
merit in these arguments to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only a few comments on each.
In responding to the buyer's first point, it suffices to invoke our standard
of review, which requires deference to a trial judge's findings of fact when
they are supported by credible evidence. Rova Farms Resort, Inc. v. Investors
Ins. Co., 65 N.J. 474, 483-84 (1974). The buyer has offered no principled
1 The order under review includes a provision that authorized the seller to seek fees pursuant to Rule 4:58, the offer of judgment rule. We were told at oral argument that seller made such an application but buyer's notice of appeal was filed before the judge could rule, thereby depriving the trial court of jurisdiction. See R. 2:9-1(a). The outstanding offer of judgment issue leaves us with an appeal from an interlocutory order. This circumstance should have been brought to our attention by way of either a motion to dismiss the appeal or a motion for a limited remand for that last issue's disposition. See Gordon v. Rozenwald, 380 N.J. Super. 55, 64 n.2 (App. Div. 2005). Notwithstanding the lack of finality, we could sua sponte dismiss the appeal, as is our prerogative. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 459-60 (App. Div. 2008). But, because the matter was fully briefed, has now been argued, and is otherwise ready for disposition, we exercise our discretion to rule on the appeal's merits at this time. See Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002). We feel particularly so compelled because of this case's undue longevity.
A-5310-17T2 3 reason for second-guessing the experienced and able trial judge's findings of
fact or his credibility findings.
The second point requires a longer explanation. As noted, the matter
was commenced in the Chancery Division. Early on, a chancery judge entered
an order that preserved the status quo by prohibiting movement of the contract
deposit and by restraining seller's transfer of the property in question; he later
lifted the restraint on the transfer of the property. That judge retired and
another chancery judge transferred the action to the Law Division even though
buyer's equitable claim remained undecided.
The buyer had not demanded a jury trial of any legal issues contained in
her complaint. The seller, however, in filing an answer and counterclaim, did
make such a demand. Once a jury trial demand has been included in a party's
initial pleading or asserted within the following ten days, R. 4:35-1(a), any
other party has the right to insist on a trial by jury of legal issues even if that
party did not make the demand in its pleading, R. 4:35-1(d). So, the buyer is
correct that she had a right to insist upon a trial by jury of any legal issues
notwithstanding her failure to demand that right in her pleadings. See 500
Columbia Tpk. Assocs. v. Haselmann, 275 N.J. Super. 166, 170 (App. Div.
1994).
A-5310-17T2 4 But it is also true that the right to trial by jury does not extend to
equitable claims even if legal claims are joined to the action. A jury trial
demand in a case with claims based in both law and equity requires a
determination as to whether the claims are separable or intertwined; if they are
intertwined, then the court must determine whether the equitable claims or the
law claims predominate. Sun Coast Merch. Corp. v. Myron Corp., 393 N.J.
Super. 55, 85-86 (App. Div. 2007); Boardwalk Props., Inc. v. BPHC
Acquisition, Inc., 253 N.J. Super. 515, 527-28 (App. Div. 1991). This
determination must be made with "a sensitive regard for the right to trial by
jury," Lyn-Anna Props., Ltd. v. Harborview Dev. Corp., 145 N.J. 313, 329-30
(1996), but, when the equity claim predominates, the judge may decide
subordinate law claims without empaneling a jury.
There is little question but that buyer's claim for rescission – which
sounded in equity – was the predominant issue; had buyer succeeded, the
seller's breach-of-contract counterclaim would have been eviscerated. By the
same token, the buyer's failure to prove that equity claim essentially compelled
a finding that she breached the contract, thereby entitling the seller to
damages. So, even though the judge rejected the demand for a jury trial for
A-5310-17T2 5 different reasons, we conclude that the refusal to empanel a jury was the
proper course.2
In her third point, the buyer argues that an earlier motion judge erred in
denying summary judgment on the rescission claim because of seller's failure
to provide a lead paint disclosure statement required by 42 U.S.C. § 4852d.3
The motion judge held that even if there was such a failure, it would not
compel a voiding of the contract because Congress declared that "nothing" in
these federal laws "shall affect the validity or enforceability of any sale or
contract for the purchase and sale or lease of any interest in residential real
property . . . nor shall anything in this section create a defect in title." 42
U.S.C. § 4852d(c). At best, these regulations provided the buyer with a
private cause of action for monetary relief. 42 U.S.C. § 4852d(b)(3). See also
Smith v. Coldwell Banker Real Estate Servs., 122 F. Supp. 2d 267, 268-69 (D.
Conn. 2000). Because the buyer asserted these federal authorities as a basis
for seeking a holding that the contract was void and not for monetary relief,
this third argument lacks merit.
2 The record also reveals that in 2012 a different judge granted an in limine motion and ordered that there be a bench trial. The buyer never sought review of that order in her first appeal, so the argument raised in this appeal may be deemed waived or abandoned. See Silviera-Francisco v. Bd. of Educ., City of Elizabeth, 224 N.J. 126, 141 (2016). 3 This motion was filed after our remand but prior to trial.
A-5310-17T2 6 The buyer's fourth and last argument concerns the trial judge's fixing of
damages on seller's breach-of-contract counterclaim. The judge's award of
damages first included the difference ($24,810) between the purchase price
that buyer had agreed to pay and the lesser amount for which the property later
sold. The judge also included an award emanating from seller's continued
ownership of the property after the date on which the buyer should have closed
(March 16, 2007) and prior to the date the closing with a third party occurred
(June 29, 2007); this aspect included seller's payment of utilities, landscaping,
and that part of the mortgage payments seller made in the interim that covered
the interest accruing on that debt. Buyer does not quarrel with any of these
aspects of the award.
Instead, buyer argues it was "unfair" for the judge to assess those parts
of seller's mortgage payments that included the payment of principal; she
claims this part of the award provided seller with a double recovery. We
disagree. Seller was not compensated more than once because the price paid
by the later purchaser for the residence was used to pay off only that part of
the principal that remained outstanding at that time; in other words, if the
principal amount owed on the mortgage was $100,000 at the time the buyer
should have closed but $99,000 by the time it later closed, it would have been
the seller that paid down the mortgage by $1000, not the later buyer. In short,
A-5310-17T2 7 we conclude it was reasonable for the trial judge to award compensation to the
seller to the extent she unnecessarily paid down the mortgage during those
three intervening months.
Affirmed.
A-5310-17T2 8