NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0073-24
RICHARD SCHIESS,
Plaintiff-Respondent,
v.
THE ESTATE OF THERESA WEBER and THE ESTATE OF DENNIS WEBER,
Defendants,
and
FRANCIS J. MCNEARY,
Defendant-Appellant. ________________________
Submitted March 5, 2026 – Decided April 8, 2026
Before Judges Marczyk and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1511-20.
Francis J. McNeary, self-represented appellant. Rutgers Law Associates, attorneys for respondent (Keerah D. McCratic, on the brief).
PER CURIAM
Defendant Francis J. McNeary appeals from the trial court's July 31, 2024
order setting aside a January 10, 2019 deed to real property, based on a jury
verdict in favor of plaintiff Richard Schiess, finding fraud in the deed's
execution. We affirm.
I.
This matter arises from a dispute regarding the alleged fraudulent transfer
of title to a condominium unit located in Little Egg Harbor, after plaintiff, then
seventy-seven years old, executed a deed in January 2019 that transferred his
ownership of the unit to Theresa Weber and her husband, Dennis Weber.1
Plaintiff had owned and lived in the condominium unit since 2003, having
purchased it with his brother using the proceeds from the sale of their family
home. Theresa, whom plaintiff had known since childhood, drove plaintiff to
purchase the unit, was present for the sale, and paid the closing costs, but she
did not contribute anything toward the purchase price. The 2003 deed listed
plaintiff and Theresa as joint tenants with rights of survivorship. Plaintiff's
1 Because Theresa Weber and Dennis Weber share a surname, we refer to them by their first names. No disrespect is intended. A-0073-24 2 brother was not listed on the deed due to concerns his declining health would
impact his ability to retain ownership. Instead, Theresa was listed on the deed
to ensure if anything happened to plaintiff, his brother would not be at risk of
eviction from the property.
In August 2022, plaintiff filed an amended complaint against defendants
the Estate of Theresa Weber, 2 the Estate of Dennis Weber, and McNeary, 3 the
son of Theresa. Plaintiff's complaint asserted several claims against defendants,
including fraudulent inducement in contract, fraud, and fraudulent
misrepresentation to gain interest in property. Plaintiff also sought equitable
relief, including the return of title to the property, and asserted a jury demand.
A jury trial was held over three consecutive days in July 2024. The parties
were all represented by counsel. Plaintiff testified about the execution of the
2019 deed, explaining Theresa and Dennis came to his home unannounced one
day, took him to TD Bank, and paid him ten dollars to sign documents he could
2 Plaintiff amended the complaint to name the Estate of Theresa Weber as a defendant following her passing. 3 Regarding McNeary's individual liability, the trial court found no evidence he was directly involved in any fraud, noting "[t]he only reason he's in this case . . . is because he has [a] . . . potential intestate interest[] in th[e] property" and if the jury found in plaintiff's favor, it would "affect [McNeary's] potential interest in th[e] property," which was why he was named alongside the Estates of Theresa and Dennis. A-0073-24 3 not read. He asserted he later learned those documents had transferred
ownership of his home to Theresa and Dennis. There were no attorneys present
when the deed was transferred.
Plaintiff explained, after learning of the transfer, he went to the police
station accompanied by his neighbor, Margery Perez. He stated he had been
living in a nursing home since November 2022 and emphasized his desire to
return home. Plaintiff testified he intended for his family in California to inherit
the property upon his death. He also asserted he had never been declared
incompetent and had always managed on his own and paid his own bills.
Theresa contributed nothing to the condominium during the period he resided
there.
Plaintiff also described the period following his brother's death in 2009,
after which plaintiff jointly occupied the property with a friend, who contributed
to the condominium's monthly utilities until the friend's passing in 2018. He
asserted Theresa never told him anything about Section 8 benefits for
government rental assistance. Plaintiff rarely saw Theresa, Dennis, or McNeary,
estimating Theresa visited him only a handful of times over the sixteen years
between the execution of the 2003 and 2019 deeds.
A-0073-24 4 Little Egg Harbor Township Police Officer Steven Martin testified
regarding his investigation following plaintiff's visit to the police station. He
interviewed both plaintiff and Theresa. Theresa informed him she had been
friends with plaintiff since childhood and had assisted plaintiff throughout his
life because he was illiterate or had learning disabilities and suffered from the
beginnings of dementia. Theresa also said plaintiff wanted the property's title
transferred to her so he could obtain Section 8 rental assistance. However,
Officer Martin noted Theresa provided no documentation in support of th is
claim. On cross-examination, Officer Martin testified he believed plaintiff knew
he was signing something pertaining to the condominium but did not know if
plaintiff knew he was signing the deed. He also confirmed the Ocean County
Prosecutor's Office (OCPO) had deemed the matter to be civil, rather than
criminal. The OCPO declined to bring criminal charges against defendants
because it concluded plaintiff had signed the deed willingly and found no
evidence of financial fraud.
Officer Martin further testified plaintiff gave him a note allegedly written
by a relative, which plaintiff asserted Theresa never responded to. Defense
counsel objected to the testimony regarding the note and its admission. The
court sustained the objection, ruling it constituted impermissible hearsay
A-0073-24 5 evidence, but allowed Officer Martin to testify solely to the fact he had received
the note from plaintiff. The court gave the jury a curative instruction to
disregard any reference to the note's contents.
Defense counsel also objected to the admission of Officer Martin's police
report. The court sustained the objection, ruling Officer Martin could use the
report to refresh his recollection but the report itself could not be entered into
evidence as it contained impermissible hearsay. Plaintiff's counsel also moved
to admit a Zillow listing for the property, which defense counsel objected to,
arguing the listing was irrelevant and Officer Martin lacked personal knowledge
regarding who created or controlled the listing. The court sustained the
objection.
Perez, who lived across the hall from plaintiff for over twenty-one years,
testified about her relationship with him. She occasionally assisted plaintiff
with reading his bills due to his illiteracy, noting he paid his routine bills via
money orders. Perez stated plaintiff could not read or write well and often
required help from friends and neighbors. She recalled learning of the 2019
deed transfer after plaintiff called her about receiving tax correspondence
indicating his name was no longer listed on the deed. Perez explained she took
A-0073-24 6 plaintiff to the police station to report the incident. She asserted plaintiff
believed he was signing insurance papers rather than a property deed.
McNeary testified he had no role in the 2019 deed transfer and did not
know the details of what transpired at the bank. However, Theresa told him
plaintiff's interest was transferred so she could help him pay his bills following
the passing of his friend and brother. McNeary maintained he and Theresa paid
all association and utility bills on the property since 2019, after plaintiff's
finances no longer allowed him to do so. He also asserted nothing prevented
plaintiff from returning to the property if he were released from the nursing
home.
On July 31, 2024, the jury, by a vote of six to one, issued a verdict finding
plaintiff had proven by clear and convincing evidence "the deed he signed on
January 10, 2019[,] was a result of fraud perpetrated upon him by one or more
of the defendants." Accordingly, the trial court ordered "[t]he January 10, 2019
[d]eed listing Dennis . . . and Theresa . . . as title holders" to the condominium
be set aside "due to the jury's finding of fraud in the execution." It further
discharged any and all of defendants' rights to the property. On February 13,
2025, the court entered an order granting plaintiff the legal right to the property
and "granted quiet title to the property."
A-0073-24 7 II.
An appellate court reviews a "trial court's evidentiary rulings . . . [']under
the abuse of discretion standard because, from its genesis, the decision to admit
or exclude evidence is one firmly entrusted to the trial court's discretion.'" State
v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. &
Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). An abuse of discretion occurs when
a trial court's decision "was not premised upon consideration of all relevant
factors, was based upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181,
193 (App. Div. 2005). An improper evidentiary ruling calls for reversal if it "is
'so wide of the mark' that it constitutes 'a clear error in judgment,'" State v.
Garcia, 245 N.J. 412, 430 (2021) (quoting State v. Medina, 242 N.J. 397, 412
(2020)), such that it is "clearly capable of producing an unjust result ," Manata
v. Pereira, 436 N.J. Super. 330, 349 (App. Div. 2014) (quoting R. 2:10-2).
When no objection is made to the admission of evidence, but it is
challenged on appeal, the plain error standard applies. See R. 2:10-2; State v.
Santamaria, 236 N.J. 390, 404-05 (2019). Plain error is a "high bar" to clear.
Santamaria, 236 N.J. at 404. "[T]he error will be disregarded unless a reasonable
doubt has been raised whether the jury came to a result that it otherwise might
A-0073-24 8 not have reached." State v. Singh, 245 N.J. 1, 13 (2021) (quoting State v. R.K.,
220 N.J. 444, 456 (2015)). In civil cases, relief under the plain error rule "is
discretionary and 'should be sparingly employed.'" Cavuoti v. N.J. Transit
Corp., 161 N.J. 107, 129 (1999) (quoting Ford v. Reichert, 23 N.J. 429, 435
(1957)); see also Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J.
Super. 448, 487 n.14 (App. Div. 2012).
Regarding issues of equitable relief, "the court retains wide discretion in
fashioning its contents and determining its breadth and scope." Stoney v. Maple
Shade Twp., 426 N.J. Super. 297, 313 (App. Div. 2012); see also In re Resol. of
the State Comm'n of Investigation, 108 N.J. 35, 46 (1987) (recognizing an
equitable remedy is granted within the court's discretion). Consequently, we
review such decisions for an abuse of discretion standard. Stoney, 426 N.J.
Super. at 307. However, where the disputed equitable issue is a question of law,
our review is de novo. Regalado v. Curling, 430 N.J. Super. 342, 345 (App.
Div. 2013).
A.
McNeary argues the trial court erred in allowing Officer Martin to testify
regarding his investigation into the execution of the 2019 deed. He contends
Officer Martin's testimony was not materially relevant and was substantially
A-0073-24 9 more prejudicial than probative because "[t]here was no logical connection
between [his] investigation and what transpired at TD Bank" in 2019. He asserts
Officer Martin's testimony gave the jury the impression charges were not filed
only because the reasonable doubt standard could not be satisfied. McNeary
insists this testimony amounted to "back[d]oor[,] inadmissible opinion
testimony."
McNeary also claims Officer Martin's testimony contained a "great deal
of hearsay and self-serving statements made by . . . plaintiff and others." He
further asserts, "[s]uch self-serving statements are not admissible," citing Dolan
v. Chesler, 5 N.J. Super. 313 (App. Div. 1949).
Only relevant evidence is admissible. N.J.R.E. 402. "'Relevant evidence'
means evidence having a tendency in reason to prove or disprove any fact of
consequence to the determination of the action." N.J.R.E. 401. The test for
relevance is broad and generally favors admissibility. State v. Deatore, 70 N.J.
100, 116 (1976). "The burden of establishing this connection is not onerous: 'if
the evidence makes a desired inference more probable than it would be if the
evidence were not admitted, then the required logical connection has been
satisfied.'" State v. Garrison, 228 N.J. 182, 195 (2017) (quoting State v.
Williams, 190 N.J. 114, 123 (2007)). However, "relevant evidence may be
A-0073-24 10 excluded if its probative value is substantially outweighed by the risk of . . .
[u]ndue prejudice, confusion of issues, or misleading the jury." N.J.R.E. 403(a).
The burden rests upon the opposing party to demonstrate the risk of undue
prejudice outweighs the probative value. Rosenblit v. Zimmerman, 166 N.J.
391, 410 (2001).
Having considered McNeary's arguments and the applicable law, we
discern no basis to disturb the trial court's evidentiary rulings regarding Officer
Martin's testimony, let alone plain error. Defense counsel raised several
objections throughout Officer Martin's testimony about leading, narrative, and
cumulative questions, as well as to the admissibility of the note allegedly from
plaintiff's relative, the police report, and the Zillow listing for the property. The
record demonstrates the court promptly ruled on those objections, sustaining the
majority, including defense counsel's hearsay objections to the note and police
report.
Notably, the record does not reflect that McNeary objected to the
relevance of Officer Martin's testimony regarding his investigation or the
OCPO's decision not to pursue criminal charges against defendants. Given
defense counsel's other objections to Officer Martin's testimony, counsel's
failure to make this particular objection "suggests that counsel 'perceived no
A-0073-24 11 error or prejudice, and, in any event, prevented the trial judge from remedying
any possible confusion in a timely fashion.'" See DiMaria Constr., Inc. v.
Interarch, 351 N.J. Super. 558, 570 (App. Div. 2001) (quoting Bradford v.
Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995)). In any event,
even under the plain error standard, we are unconvinced the admission of the
challenged testimony led to an unjust result. 4 R. 2:10-2.
We are unpersuaded by McNeary's contention there was "no logical
connection" between Officer Martin's investigation and the events that
transpired at TD Bank when the 2019 deed was executed. In his summation,
defendants' trial counsel referred to Officer Martin's testimony in arguing
plaintiff willfully signed the deed, stating:
And the police officer, [O]fficer . . . Martin . . . doesn't have a pony in this race. I think we can all agree he's an independent observer. He's investigated elder abuse, fraud, those sorts of things. H[e] and his partner interviewed all the relevant parties to this [action]. And what was his conclusion? That [plaintiff] willfully signed the deed. That was his independent determination, his conclusion based upon the information he received. [Plaintiff] willingly signed the deed. How can it be fraud? [Plaintiff] . . . read the
4 In contending these issues were raised before the trial court, McNeary cites a pretrial motion in which defendants "object[ed] to testimony by Officers Mancini and Dietrick." However, there is nothing in the record reflecting how or if the court ruled on the motion, and the motion did not mention Officer Martin. A-0073-24 12 word[] deed. He knew what he was signing. He wasn't defrauded [and] he wasn't put out on the street.
Thus, as defense counsel argued, Officer Martin's testimony regarding his
investigation was relevant, because it made it more probable plaintiff knew what
he was signing, such that the 2019 deed was not fraudulently executed.
The testimony was also relevant from plaintiff's perspective to corroborate
he was surprised to learn the deed to his condominium had been transferred to
Theresa, unbeknownst to him. Accordingly, he sought assistance from the
police. Additionally, most of Officer Martin's testimony regarding the decision
of the OCPO to not bring criminal charges was elicited during cross-examination
by defense counsel. In fact, defendants' trial counsel expressly elicited Officer
Martin's agreement regarding probable cause being a "fairly low threshold" to
bring criminal charges, as opposed to the beyond a reasonable doubt burden of
proof at trial. As to McNeary's contention regarding Officer Martin's
inadmissible "back[d]oor . . . opinion testimony," defense counsel also explicitly
asked Officer Martin to confirm it was his "opinion that the [OCPO] determined
that th[e] lower threshold [of probable cause] was not satisfied." Thus, Officer
Martin's testimony did not leave the impression criminal charges had not been
filed because the reasonable doubt standard could not be met but, rather, because
A-0073-24 13 the lesser standard of probable cause could not be satisfied, which reinforced
the defense's position the deed was not fraudulently executed.
Moreover, "strategic reasons can be inferred from [defense] counsel"
questioning Officer Martin regarding these topics during cross-examination, and
counsel's failure to object to his testimony "suggests that it was not perceived to
be as fatal as is now argued." See T.L. v. Goldberg, 238 N.J. 218, 232 (2019);
Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 523 (second alteration
in original) ("[T]he '[f]ailure to make a timely objection indicate[d] that defense
counsel did not believe the remarks were prejudicial at the time they were
made.'" (quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div.
2009))). Accordingly, absent plain error, of which there is none here, McNeary
is not entitled to relief from the consequences of his chosen trial strategies. See
T.L., 238 N.J. at 232.
Although McNeary's brief does not clearly identify exactly which portions
of Officer Martin's testimony he challenges as impermissible hearsay, we glean
that he objects to the testimony regarding the handwritten note allegedly from
plaintiff's relative. While the court initially permitted Officer Martin, over
defense counsel's objection, to testify as to whether he received the note from
plaintiff during the course of his investigation, it subsequently sustained defense
A-0073-24 14 counsel's objection to his testimony regarding plaintiff's statements the note was
"written for him by his nephew's father" and that Theresa never responded to it.
Thus, contrary to McNeary's assertion defense counsel's objections and requests
were not "heeded," the court: excluded the note as impermissible hearsay;
granted defense counsel's request for a curative instruction; and instructed the
jury to "disregard" the "couple of snippets about what may or may not have been
[i]n th[e] note" and stated "the[re would] be no more about th[e] note."
Accordingly, the court did not misapply its discretion, as its subsequent ruling
and curative instruction negated any potential prejudice McNeary may have
suffered.
B.
McNeary next contends the trial court improperly relied on an advisory
verdict with neither a motion before it to do so nor his consent pursuant to Rule
4:35-2, which governs the use of advisory juries. He maintains he did not
consent to allowing the jury to decide the equitable issue of whether to set aside
the 2019 deed and argues the elevation of the jury's advisory verdict to a binding
verdict violated his procedural due process rights and prejudiced him. McNeary
asserts his consent could not be inferred from his failure to object to the use of
an advisory verdict. Additionally, he claims "the trial judge had indicated that
A-0073-24 15 he would have found for the defense" but does not point us to support for this
contention in the record.
McNeary did not raise this argument before the trial court. "Generally, an
appellate court will not consider issues, even constitutional ones, which were
not raised [before the trial court]." State v. Galicia, 210 N.J. 364, 383 (2012).
Appellate courts do not "consider questions or issues not properly presented to
the trial court when an opportunity for such a presentation is available 'unless
the questions so raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.
542, 548 (App. Div. 1959)). This appeal involves neither an issue regarding
jurisdiction nor a matter of great public importance warranting departure from
this general rule.
Nevertheless, even if the issue had been properly raised, we are
unpersuaded by McNeary's arguments. Rule 4:35-2 provides:
The court on motion or its own initiative may try with an advisory jury any issue not triable of right by a jury, or it may, with the consent of all parties appearing at the trial, order a trial of any such issue with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
[(Emphasis added).]
A-0073-24 16 The jury neither issued an advisory verdict nor decided an issue of equity.
Rather, there was a right to a jury trial on plaintiff's common-law fraud claim,
which was the sole issue submitted to the jury. See Zorba Contractors, Inc. v.
Hous. Auth. of Newark, 362 N.J. Super. 124, 139 (App. Div. 2003) ("There is
an undisputed right to a jury trial in an action for common-law fraud . . . .").
That issue was properly submitted to the jury, as plaintiff asserted a jury demand
in his complaint, and accordingly, the jury returned a binding verdict in
plaintiff's favor. See R. 4:35-1(d) (explaining when a jury trial has been
demanded "the trial of all issues . . . shall be by jury, unless all parties . . .
consent to trial by the court without a jury, or unless . . . a right of trial by jury
of some or all of those issues does not exist").
The trial court never informed the jury it was considering its verdict as
advisory only, and the case was tried as if the jury's verdict would be binding.
Thus, "[b]ecause the jury 'never functioned as or was constituted or denominated
as an advisory jury[,] . . . there is no prejudice . . . in accepting the jury's fact-
finding as the final verdict.'" See Zorba, 362 N.J. Super. at 141 (quoting Almog
v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 160 (App. Div.
1997)).
A-0073-24 17 Lastly, once the jury performed its function in deciding the fraud issue,
the court appropriately fashioned an equitable remedy to reconvey the deed to
plaintiff. That is, once a trial court is vested with jurisdiction over a legal claim,
it may grant the necessary equitable relief to resolve the dispute. See Donnelly
v. Ritzendollar, 14 N.J. 96, 104 (1953).
To the extent we have not specifically addressed any remaining arguments
raised by McNeary, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0073-24 18