JANETTE FAULK, ETC. VS. ANNE MARTUCCI (C-000160-18, HUDSON COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2234-19T1
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.
_____________________________
Submitted January 11, 2021- Decided January 26, 2021
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 relationship
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eventually 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.
A-2234-19T1
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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 the
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constructive 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[.]
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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:
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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.
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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 order
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denying 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 broadly
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construed in New Jersey as '[the] courts have considered the threshold for
standing to be fairly low.'" Ibid. (quoting Reaves v. Egg Harbor Twp., 277 N.J.
Super. 360, 366 (App. Div. 1994)). Although "a litigant may not [ordinarily]
claim standing to assert the rights of a third party," Jersey Shore Med. Ctr. v.
Estate of Baum, 84 N.J. 137, 144 (1980), "standing to assert the rights of third
parties is appropriate if the litigant can show sufficient personal stake and
adverseness so that the [c]ourt is not asked to render an advisory opinion." Ibid.
Standing may be statutorily conferred. See, e.g., Triffin v. Bridge View
Bank, 330 N.J. Super. 473, 477 (App. Div. 2000). Relevant to this appeal, Rule
4:26-2(a) provides that "a mentally incapacitated person shall be represented in
an action by the guardian of either the person or the property . . . or if a conflict
of interest exists . . . by a guardian ad litem." Under N.J.S.A. 3B:12-57(f)(10),
which governs guardians:
[A] guardian of the person of a ward shall exercise
authority over matters relating to the rights and best
interest of the ward's personal needs, only to the extent
adjudicated by a court of competent jurisdiction. In
taking or forbearing from any action affecting the
personal needs of a ward, a guardian shall give due
regard to the preferences of the ward, if known to the
guardian or otherwise ascertainable upon reasonable
inquiry. To the extent that it is consistent with the
terms of any order by a court of competent jurisdiction,
the guardian shall:
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....
If necessary, institute an action that could be
maintained by the ward including but not limited to,
actions alleging fraud, abuse, undue influence and
exploitation.
N.J.S.A. 3B:12-57(f)(10) clearly identifies undue influence, fraud and
related claims that that may be brought by the guardian of the person, therefore
conferring standing on plaintiff under these circumstances. Plaintiff believed
Harry was the true owner of the Meadows and its income stream notwithstanding
how it was legally titled by his attorney. Plaintiff argues that defendant's titling
in her own name and the siphoning of the income stream for Harry's support and
maintenance was contrary to her role as trustee of Edgar-Charles. This theory
is related to undue influence, fraud, and exploitation, with a remedy tied to
Harry's financial support.
Whether the property guardian also could have brought the action or may
have been more appropriate to bring the action does not alter the fact that the
statute clearly confers standing on plaintiff. Defendant does not cite to any case
barring the personal guardian's standing, and more importantly she does not cite
a case that would have required dismissal of the complaint as opposed to a mere
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substitution of the guardian.1 The property guardian appeared in response to
defendant's January 4, 2019 motion to dismiss and could have been substituted
as the plaintiff in this action. Defendant has not identified anything that would
have changed if the property guardian had simply substituted in or if defendant
had joined her.
II.
We will not set aside the trial judge's findings of fact "'unless we are
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474,
484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super 154, 155
(App. Div. 1963)). We must "give deference to the trial [judge] that heard the
witnesses, sifted the competing evidence, and made reasoned conclusions."
Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (citing Rova Farms,
1
In a letter to the court, defendant submits that Repko v. Our Lady of Lourdes
Medical Ctr, Inc., 464 N.J. Super. 570 (App. Div. 2020), which was published
after the parties completed their briefing, undermines plaintiff's argument that
defects in standing can be cured through substitution. We reject the application
of Repko here, as there is no defect in standing and conclude that the decision
does not warrant this court's dismissal of plaintiff's complaint or otherwise alter
the outcome.
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65 N.J. at 483-84). "Deference is especially appropriate when the evidence is
largely testimonial and involves questions of credibility." Cumberland Farms,
Inc. v. N.J. Dept. of Environmental Protection, 447 N.J. Super. 423, 437 (App.
Div. 2016) (quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169
(2011)), certif. denied, 229 N.J. 149 (2017). We "give deference to the findings
of [the] trial judge because they have the 'opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" In re Civil Commitment of A.Y., 458 N.J. Super. 147, 166 (App. Div.
2019) (quoting In re Civil Commitment of R.F., 217 N.J. 152, 174 (2014)).
"A constructive trust is a remedial device through which the 'conscience
of equity' is expressed [and] it will be imposed when a person has acquired
possession of or title to property under circumstances which, in good
conscience, will not allow the property's retention." Thompson v. City of
Atlantic City, 386 N.J. Super. 359, 375-76 (App. Div. 2006) (quoting Flanigan
v. Munson, 175 N.J. 597, 608 (2003); Stewart v. Harris Structural Steel Co.,
Inc., 198 N.J. Super. 255, 266 (App. Div. 1984)), aff'd as modified, 190 N.J. 359
(2007). "The circumstances in which a constructive trust may be imposed are
as extensive as required to reach an equitable result." Thompson, 386 N.J. Super.
at 376.
A-2234-19T1
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"[A] constructive trust is a powerful tool to be used only when the equities
of a given case clearly warrant it." Flanigan, 175 N.J. at 611. Thus, the party
asserting that a constructive trust should be imposed bears the burden of
establishing its right to the remedy through clear and convincing evidence.
Dessel v. Dessel, 122 N.J. Super. 119, 121 (App. Div. 1972), aff'd o.b., 62 N.J.
141 (1973). Under this standard, the party seeking the remedy "should produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established." Liberty Mut. Ins. Co. v. Land, 186 N.J.
163, 169 (2006) (quoting In re Purrazzella, 134 N.J. 228, 240 (1993)).
"[T]he imposition of a constructive trust requires a two-part finding that
the res has been received or retained through a 'wrongful act' which 'unjustly
enriches' the recipient." Thompson, 386 N.J. Super. at 376-77 (citing Flanigan,
175 N.J. at 608). A wrongful act is "usually, though not limited to, fraud,
mistake, undue influence, or breach of a confidential relationship," D'Ippolito
v. Castoro, 51 N.J. 584, 589 (1968) (citing Neiman v. Hurff, 11 N.J. 55, 93
(1952)), and can include "innocent misstatements, or even simple mistakes[.]"
Flanigan, 175 N.J. at 609 (quoting Dan B. Dobbs, Remedies, § 4.3 (1973)).
Despite defendant's contentions to the contrary, the judge correctly opined
that "the party asserting that a constructive trust should be imposed bears the
A-2234-19T1
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burden of establishing its right to the remedy with clear and convincing
evidence." Applying this standard, the judge found that plaintiff established
both elements for imposition of a constructive trust.
First, the judge found the transfer was a wrongful act based on the
following specific facts:
Fucetola less-th[a]n-credibly contradicted himself
when questioned about his involvement with the
formation of Edgar[-]Charles. Originally, he noted that
[Harry] approached him to create this entity. However,
he reversed himself at trial when he testified that it was
the defendant's idea to establish this business
organization.
Fucetola formed the entity uniquely, establishing the
entity with two co-trustees, rather than the traditional
corporate management structure. According to his trial
testimony, the purpose of such a formation was to
provide a right of survivorship between [June] and the
defendant. However, no trust documents were
presented to substantiate this purpose, and such a
procedure is not recognized nor supported by statute or
regulation.
Fucetola was unable to credibly explain the reason for
the transfer from [Harry] to Edgar[-]Charles, and was
similarly unable to explain why, if the transfer was
bona fide, the defendant would then have had to transfer
the properties to herself.
....
The defendant testified that, consistent with her
position, that she provided most of the funding for the
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purchase of the lots. However, she fails to reconcile
this assertion with the fact that the property was not
placed in her own name, but rather in a corporate entity.
The source of the funding changed during her
testimony. At first, she testified that the funds came
from a successful jewelry business, but later, those
funds resulted from an inheritance from her sister. No
substantiating documentation was provided to support
these assertions.
The defendant also noted that she realized funds from
the other real estate holdings. However, a review of
those deeds reveals that the purchase price reflected
only the assumption of existing mortgages rather than
any net profits from the sales.
[Defendant] does not provide any plausible explanation
about the creation of the business entity being created
exclusively and personally from [Harry's] own family.
Despite her position as a trustee, and her self-admitted
sophistication in real estate matters, she was unable to
explain the import of such a designation, and the fact
that despite her position that she owned the properties
individually, she, in fact, did and could not because of
the ownership under Edgar[-]Charles.
She noted that she received funds from an inheritance
from her sister or that she raised these funds from a
jewelry business. No specifics were provided to lend
credibility with substantiating evidence. Despite her
presence and her self-acknowledged business acumen,
she did not understand the definition, import,
responsibility, and obligation of a trustee's ownership.
The defendant's representation that the defendant was
the owner of the premises and had exclusive control
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over it is belied by the lack of customary evidence to
demonstrate that ownership. Specifically, no business
checking accounts were presented at trial. Other than
her representations, no proof of either the payment or
receipt of $10,000.00 per month in rent was credibly
established. No business tax returns were presented
and accompanied by an unconvincing explanation that
the records existed elsewhere and that she was
prohibited from access[ing] them.
Rather than reporting her present title as a co-trustee of
Edgar[-]Charles, the defendant misrepresented herself
as the president of that entity in formal applications and
in supporting certifications.
Property taxes were not paid with business checks.
Rather, they were paid from a joint account owned by
the defendant with [Harry].
Actions taken after [Harry's] stroke cast doubt on the
perceived and purported exclusive ownership of the
property by the defendant.
Specifically, if the property were vested exclusively
with the defendant, and after the "resignation of
subscription", there would be no reason, if [Harry] had
indeed divested himself of any interest in the properties
vis-a-vis Edgar[-]Charles' holdings, to transfer the
parcels to herself.
Rent checks for others' use of the premise for parking
activities were made directly to [Harry] rather than to
the record owner of the premises- Edgar[-]Charles.
The judge further noted that:
Trial testimony supported by documentary evidence
revealed that [Harry] participated or orchestrated some
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unique property acquisitions and dispositions.
Examples include the transfer of property ownership
for consideration reflected to be the assumption of a
mortgage and properties were transferred to individuals
and entities who essentially were employed to hold
those assets for other or future purposes. Considering
the less-than-consistent testimony provided by . . .
Fucetola, the fact that . . . Fucetola had a continuing and
on-going representational relationship with [Harry] in a
variety of endeavors, and the lack of the defendant's
ability to provide specific and credible evidence of her
ownership activities of Edgar[-]Charles, it is reasonable
to infer that this endeavor was another unique property
management technique of [Harry]. Despite the
arguments that [Harry] engaged in substantial financial
largesse to those within his family and outside of it, the
record, and the reasonable circumstantial inferences
from those facts does not support the defendant's
assertion that it was his intent to divest himself of any
equitable ownership of any property. The opposite,
however, is both reasonable, supported, and true. Even
though [Harry] might have removed himself from the
legal title to this property, the plaintiff has established
both by direct and circumstantial proof, clearly and
convincingly, that he remained in equitable control.
Next, the judge found that defendant was unjustly enriched. The judge
noted that
[e]ach time that a transfer took place, it was related to
a watershed moment between the defendant and
[Harry]. The first transfer took place following a fight
in 2005 in which the defendant divested [Harry] of the
equitable rights that he had in a portion of the Meadow's
property. Similarly, in 2015, after [Harry] suffered his
stroke and after a judicial determination of incapacity,
she moved the entirety of the property to her own name.
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In effect, this action impermissibly removed a sizable
asset from the reach of [Harry's] financial guardian and
unreasonably and prejudicially deprived him of a
significant source of funds that would be used for his
care.
These findings are supported by substantial credible evidence in the
record, and largely based on the judge's findings that the defendant and Fucetola
were incredible witnesses, to which this court affords substantial deference. We
therefore see no reason to second-guess the trial judge's findings.
Likewise, we see no reason to second-guess the trial judge's factual
findings. Specifically, defendant contends that the trial judge failed to
distinguish between the lots for purposes of asserting true possession,
erroneously found that Fucetola represented Harry in a conflicted interest
transaction, failed to appreciate that Harry's sister contributed to the front lots,
and the judge should have believed that defendant was a jewelry mogul who
inherited money to pay for the properties.
The chronological distinction between the acquisition of the front and rear
lots carries no weight, as the question at issue is whether Edgar-Charles and its
co-trustees were supposed to do something other than hold legal title to the land.
The trial judge did not fail to appreciate Fucetola's exclusive representation of
Edgar-Charles. Rather, the question before him was what was Edgar-Charles
A-2234-19T1
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and why was title being placed in it. The judge found that the evidence
established that Harry retained Fucetola to incorporate Edgar-Charles, and it was
incorporated with co-trustees close to Harry. Harry's sister received nothing
when she resigned, while Harry continued to operate his businesses for decades,
paying himself no rent. Moreover, the judge did not fail to appreciate June's
contribution to the front lots. According to defendant's trial testimony,
defendant and a business partner paid for the lots. Finally, the judge did not err
by not giving weight to defendant's testimony about where her inheritance came
from. The judge noted that the story repeatedly changed and the inheritance that
somehow paid for the properties in the early 1970s reappeared twice more for
the purchase of the front and rear lots. After considering Fucetola's affidavit,
the judge properly rejected defendant's explanation of the formation of Edgar -
Charles and found her incredible, as she had not produced any evidence of rent
payments which would prove a landlord-tenant relationship. These findings are
supported by substantial credible evidence in the record
III.
"[T]o maintain a laches defense against a plaintiff's delayed claim, a
defendant must assert the defense in a diligent fashion." Mancini v. Twp. of
Teaneck, 179 N.J. 425, 433 (2004). "In other words, diligence is a two-way
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street." Ibid. "A mere one-time mention of laches in a defendant's answer[, like
here,] is insufficient to preserve it through the span of litigation." Ibid.; see
Williams v. Bell Tel. Labs. Inc., 132 N.J. 109, 118 (1993) (observing that litigant
in that case "had waived the statute-of-limitations defense by its failure to assert
that defense at any stage of the proceedings after pleading the statute in its
[a]nswer").
Laches "operates to bar a plaintiff from prosecuting all or part of an action
based on acts occurring months or years earlier[.]" Mancini, 179 N.J. at 435.
"[W]hether laches should be applied depends upon the facts of the particular
case and is a matter within the sound discretion of the trial [judge]." Id. at 436
(quoting Garrett v. General Motors Corp., 844 F.2d 559, 562 (8th Cir. 1988)).
This court "considers three factors as being especially relevant. They are: (1)
whether an alleged act is unreasonably distant in time, (2) whether a plaintiff
knew or should have known of a valid claim based on that act, and (3) whether
the plaintiff's delay in filing a claim has caused undue prejudice to a defendant."
Ibid. (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 121-
22 (2002); Shepherd v. Hunterdon Developmental Center, 174 N.J 1, 23 (2002)).
Defendant had opportunities before and after trial to advance a laches
defense and failed to do so. Specifically, the trial judge's January 4, 2019 order
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called for pre-trial submissions. Defendant only asserted the defense in her
answer and argued that it was only "when the judge issued his opinion" that she
realized the prejudice caused by the delay. This contention is belied by the
record. The record reflects that defendant claimed to be receiving $10,000 per
month in base rent from Harry up until his stroke in October 2014. Plaintiff
filed this action four years later and defendant had no proof of receiving
$120,000 per year from Harry.
Defendant claims that plaintiff caused the delay by bringing the action
thirty-five years after the fact. However, placement of legal title thirty-five
years ago did not even give rise to the claim. The actions of the co-trustees were
not inconsistent with those of Harry until 2014 when he had a stroke and
thereafter claimed to be the true owner of the back lots. Plaintiff brought this
action four years later in 2018 after she was appointed as Harry's guardian,
therefore giving her standing to litigate the issue. With this in mind, and
applying the factors set forth in Mancini, the alleged act was not unreasonably
distant in time and plaintiff found out four years earlier of the ownership issue
in the only way she could have. Additionally, defendant cannot show prejudice
where she claims that Harry was her $10,000 per-month tenant up until his
stroke, yet failed to proffer tax returns, checks, or bank statements to ev idence
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decades of payments, even those as recent as 2014. Therefore, even if defendant
properly asserted the defense, it would have been meritless. And despite
defendant's assertion, there was no reason for the judge to sua sponte apply it.
IV.
Lastly, we reject defendant's argument that the judge erred by allowing
plaintiff's counsel to cross-examine defendant's sole attorney witness on
disciplinary transgressions.
"'[Trial judges] have a broad discretion in determining the scope of cross-
examination.'" Manata v. Pereira, 436 N.J. Super. 330, 343 (App. Div. 2014)
(quoting State v. Silva, 131 N.J. 438, 444 (1993)). "[This] court will not
interfere with the exercise of such discretion unless clear error and prejudice is
shown.'" State v. Adames, 409 N.J. Super. 40, 61 (App. Div. 2009) (quoting
Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super 37, 54 (App. Div.),
certif. denied, 122 N.J. 391 (1990)).
N.J.R.E. 607 states in relevant part that "for the purposes of attacking or
supporting the credibility of a witness, any party including the party calling the
witness may examine the witness and introduce extrinsic evidence relevant to
the issue of credibility[.]" This rule "permits the introduction of extrinsic
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evidence affecting a witness's credibility regardless of whether that evidence is
relevant to any other issue in the case." State v. Parker, 216 N.J. 408, 418
(2014). The court has held that that when misconduct is an issue in the case, the
fact that the attorney was subject to disciplinary proceedings unrelated to the
case are admissible to impeach the attorney's credibility. See Fuschetti v.
Bierman, 128 N.J. Super. 290, 298 (Law Div. 1974) (noting that for the purpose
of attacking credibility it may be shown on cross-examination that a witness is
a disbarred attorney).
On cross-examination, the trial judge allowed plaintiff's counsel to
confront the attorney with several disciplinary actions by the Office of Attorney
Ethics for inadequate record keeping. Plaintiff's counsel offered this line of
inquiry to call the attorney's credibility into question, which the trial judge
admitted over objection as "relevant under the circumstances." The cause for
the witness's ethical violations is relevant here, where there was an alleged
conflicted interest transaction. Moreover, inadequate record keeping does bear
upon credibility and veracity, especially given Fucetola's involvement with the
incorporation of Edgar-Charles and the subsequent title transfers.
Notably, the trial judge's written opinion did not make specific mention
of the ethical matters or how they impacted his credibility assessment.
A-2234-19T1
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Defendant concedes this, but nonetheless contends that the "[trial judge] was
quite clear in finding [the attorney witness] less than credible and stressing the
importance of credibility generally in reaching his ultimate conclusion,"
resulting in an ultimate prejudice to defendant. There was no jury and no impact
on the bench trial. As such, we see no prejudice. The cross-examination of
Fucetola was therefore appropriate here.
Affirmed.
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