                        NOT FOR PUBLICATION WITHOUT THE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-2955-16T1



L. JOSEPH BURKE,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

ANNA BERNARDINI,

     Defendant-Respondent/
     Cross-Appellant.
___________________________

              Argued telephonically March 27, 2018 –
              Decided July 13, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Camden County, Docket No.
              C-000073-16.

              Jay H. Greenblatt argued the cause for
              appellant/cross-respondent  (Greenblatt   &
              Laube, PC, attorneys; Jay H. Greenblatt, on
              the brief).

              Jonathan Edward Ingram argued the cause for
              respondent/cross-appellant (Borger Matez, PA,
              attorneys; Bruce P. Matez and Jonathan Edward
              Ingram, on the briefs).
PER CURIAM

     Plaintiff L. Joseph Burke and defendant Anna Bernardini were

involved in a romantic relationship, during which Burke purchased

property    on    which    he     built   a       house   where    they   would    reside

together.        The original deed to the property conveyed title to

Burke only, but pursuant to the parties' written agreement, Burke

executed and recorded a deed conveying title to himself and

Bernardini as joint tenants with right of survivorship.                             After

Burke ended the relationship, he filed a complaint in the Chancery

Division,    General       Equity    Part,         seeking,   in     part,   to    compel

Bernardini to convey her interest in the property to him without

payment    under    a     joint    venture         theory.        Bernardini   filed      a

counterclaim for partition and counsel fees.1

     Burke appeals from that part of the February 17, 2017 order,

which granted summary judgment to Bernardini on her partition

claim,     and    the   February      23,         2017    judgment    for    partition.

Bernardini cross-appeals from the March 10, 2017 order, which

denied her motion for counsel fees.                  We affirm.




1
   In count two of her counterclaim, Bernardini asserted a claim
for palimony and breach of contract. She subsequently dismissed
that count with prejudice.

                                              2                                   A-2955-16T1
                                     I.

       We derive the following facts from the evidence submitted

by the parties in support of, and in opposition to, the summary

judgment motion, viewed in the light most favorable to the party

who opposed entry of summary judgment.               Elazar v. Macrietta

Cleaners, Inc., 230 N.J. 123, 135 (2017).

      The parties knew each other for approximately twenty-five

years before they began dating in March 2009.          At that time, Burke

resided at his home in Milmay and Bernardini resided at her

daughter's condominium in Marlton.

      In September 2010, Burke began residing with Bernardini in

the Marlton condominium, where they paid the rent and utilities

equally.      In November 2010, Burke returned to reside at his home

in   Milmay    and   Bernardini   continued    residing   in    the    Marlton

condominium.     They continued their relationship.

      In November 2011, the parties agreed to lease a condominium

in Margate for a one-year term, and share expenses.              In January

2012, defendant began paying Bernardini's share of the expenses

after she became financially unable to do so.

      In   November    2012,   Bernardini     was   helping    her    daughter

establish a salon in Marlton.      She began residing in a condominium

her son leased for her across from her daughter's condominium and



                                     3                                 A-2955-16T1
Burke returned to his home in Milmay.                 They continued their

relationship.

      In 2013, the parties discussed residing together, and Burke

listed his home in Milmay for sale.          After the home sold in 2014,

Burke resided at his daughter's home in Egg Harbor.                He purchased

property in Berlin and built a house on it.            He paid $368,000 for

the   property   and   approximately      $100,000    for   improvements     and

additions to the house.      Both parties contributed furnishings.

      Prior to the closing of title, on September 15, 2014, the

parties executed an agreement, which provided as follows, in

pertinent part:

           Promise to Bernardini. Burke acknowledges and
           agrees that Bernardini has provided, and will
           continue to provide companionship to him of
           an indefinite length.     Burke promises and
           represents that upon [c]losing, the [h]ome
           shall be deeded and titled in the name of
           "Burke and Bernardini, as joint tenants with
           the right of survivorship," in accordance with
           N.J.S.A. 46:3-17.1.

The agreement also provided: "Burke warrants and represents that

Bernardini shall have no financial obligations for the [h]ome,

including,   but   not    limited   to,    property    taxes,      [homeowners]

association fees, and homeowners insurance[,]" and "Burke warrants

and   represents   that    he   has    entered   into       this   [a]greement

volitionally and of his free will."



                                      4                                 A-2955-16T1
     The closing of title occurred on September 25, 2014. Contrary

to the agreement, the deed to the property conveyed title only to

Burke.   The parties then executed an amended agreement on October

3, 2014, which provided as follows, in pertinent part:

           Promise of Burke. Burke acknowledges and
           agrees that Bernardini has provided, and will
           continue to provide companionship to him of
           an indefinite length.     Burke promises that
           within [forty-five] days from the execution
           of this [a]greement, or as soon as reasonably
           possible, the existing deed to the [h]ome
           shall be modified to be "Burke and Bernardini,
           as   joint   tenants   with   the   right   of
           survivorship," in accordance with N.J.S.A.
           46:3-17.1.

           [(Emphasis added).]

The agreement also provided: "Burke warrants and represents that

he has entered into this [a]greement volitionally and of his free

will[,]" and that the agreement was "intended to set forth the

entire understandings between the [p]arties[.]"

     In accordance with both agreements, on November 17, 2014,

Burke, as grantor, executed a deed to himself and Bernardini as

grantees, conveying title to the property to them as "joint tenants

with the right of survivorship."     The deed expressly provided:

"The [g]rantor, by his signature below, evidences his intention

to convey the [p]roperty to the [g]rantees, as joint tenants with

the right of survivorship, and not as community property nor



                                 5                          A-2955-16T1
tenants in common."     (Emphasis added).       The deed was recorded in

the Camden County Clerk's Office on December 19, 2014.

     The parties began residing in the Berlin house in January

2015.    In accordance with the agreements, Burke paid the utility

bills, cost of repairs and maintenance, and all other costs

associated with the house.

     In February 2016, Burke ended the relationship and moved out

of the house.     He then instituted the present action to compel

Bernardini to convey her one-half ownership interest to him without

any payment for her one-half ownership interest. He alleged "[t]he

transfer of title to [Bernardini] jointly was for the purpose of

giving   [Bernardini]   the   security    of   a   right   of   survivorship

conditioned on the maintenance and continuance of the amicable

relationship and companionship that had been promised for an

indefinite length of time[,]" and the condition was not fulfilled.

He also alleged the parties entered into a joint venture for the

purchase and maintenance of the property, which ended in February

2016.    Bernardini filed a counterclaim for partition pursuant to

N.J.S.A. 2A:56-2.

     Bernardini   filed   a   motion     for   summary     judgment   on   her

partition claim, and sought equal distribution of the proceeds of

the sale of the property.      She also sought counsel fees pursuant

to Rule 1:4-8.

                                   6                                  A-2955-16T1
      Burke filed a cross-motion for summary judgment on his joint

venture claim, and requested a plenary hearing to determine the

equitable distribution of the sale proceeds based on quantum

meruit.2     In opposition, Bernardini did not dispute the property

was procured as a joint venture, but argued by deed, it became a

joint tenancy with right of survivorship and the deed controlled.

      In granting summary judgment to Bernardini, the court found

the   deed    expressly   created   a       joint   tenancy   with   right    of

survivorship pursuant to N.J.S.A. 46:3-17,3 not a tenancy in

common, and Bernardini had a one-half interest in the property

entitling her to equal distribution of the sale proceeds.                    The




2
   Burke also sought summary judgment dismissing count two of
Bernardini's counterclaim for palimony and breach of contract,
which the court denied. Because Bernardini subsequently dismissed
those claims with prejudice, the issues are moot.
3
    N.J.S.A. 46:3-17 provides as follows:

             From and after February fourth, one thousand
             eight hundred and twelve, no estate shall be
             considered and adjudged to be an estate in
             joint tenancy, except it be expressly set
             forth in the grant or devise creating such
             estate that it was or is the intention of the
             parties to create an estate in joint tenancy
             and not an estate of tenancy in common, any
             law, usage, or decision theretofore made, to
             the contrary notwithstanding.



                                        7                              A-2955-16T1
court noted that even if the deed created a tenancy in common,

Bernardini still had a right to partition.

       The court rejected Burke's claim for equitable distribution

of the sale proceeds based on quantum meruit.               The court found

that by executing the second deed, Burke gifted Bernardini one-

half   of   the   value   of   the   property   and   was   not   entitled   to

reimbursement for the contributions he made to acquire, improve,

or maintain the property.        The court memorialized its decision in

a February 17, 2017 order. On February 23, 2017, the court entered

a judgment for partition and ordered the equal distribution of the

net sale proceeds.4       In a March 10, 2017 order, the court denied

Bernardini's motion for counsel fees.

                                      II.

       On appeal, Burke reiterates that the property was a joint

venture and the court should have conducted a plenary hearing to

determine equitable division of the sale proceeds based on quantum

meruit.     We disagree.

       Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court.                Conley v.

Guerrero, 228 N.J. 339, 346 (2017).             Thus, we consider, as the

trial court did, "whether the evidence presents a sufficient


4
   Prior to entry of the judgment, in a February 15, 2017 order,
the court approved the sale of the property for $435,000.

                                       8                              A-2955-16T1
disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law." Liberty

Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J. 436, 445-46

(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 536 (1995)).     Summary judgment must be granted "if the

pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law."   Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,

224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).

     "To defeat a motion for summary judgment, the opponent must

'come forward with evidence that creates a genuine issue of

material fact.'"    Cortez v. Gindhart, 435 N.J. Super. 589, 605

(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.

v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)).   "[C]onclusory

and self-serving assertions by one of the parties are insufficient

to overcome the motion."   Puder v. Buechel, 183 N.J. 428, 440-41

(2005) (citations omitted).

     If there is no genuine issue of material fact, we must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).         We

                                9                          A-2955-16T1
review issues of law de novo and accord no deference to the trial

judge's legal conclusions.         Nicholas v. Mynster, 213 N.J. 463, 478

(2013).   "[F]or mixed questions of law and fact, [an appellate

court] give[s] deference . . . to the supported factual findings

of the trial court, but review[s] de novo the lower court's

application of any legal rules to such factual findings."              State

v.   Pierre,   223   N.J.   560,    576-77   (2015)   (citations   omitted).

Applying the above standards, we discern no reason to disturb the

court's grant of summary judgment to Bernardini.

      It has been long-held that:

           "Where a deed is made and accepted in
           pursuance of an executory contract, the law
           presumes that it fully expresses the final
           intentions of the parties as to so much of the
           contract as it purports to execute." . . . It
           is the general rule that the acceptance of a
           deed for land is to be deemed prima facie full
           execution of an executory agreement to convey
           and that thenceforward the agreement becomes
           void and the rights of the parties are to be
           determined by the deed, not by the agreement.
           The deed when accepted is presumed to express
           the ultimate intent of the parties with regard
           to so much of the contract as it purports to
           execute. Covenants collateral to the deed are
           exceptions to this rule.

           . . . [T]he acceptance of a deed for land is
           to be deemed prima facie full execution of an
           executory contract to convey, unless the
           contract contains covenants collateral to the
           deed.




                                      10                             A-2955-16T1
             [Bogert v. Citizens First Nat'l Bank & Tr.
             Co., 131 N.J.L. 218, 221-22 (E. & A. 1944)
             (emphasis added) (citations omitted).]

      Here, even if the parties' conduct suggested a joint venture,

the   subsequent    agreements     changed    the   legal   nature   of    this

relationship.      The agreements, both executed prior to Burke's

execution of the second deed, established the parties would hold

title   to   the   property   as   joint     tenants   with   the    right    of

survivorship and Bernardini would have no financial obligations

for the house.     The agreements contained no provision preserving

the joint venture or granting Burke the right to reimbursement for

the contributions he made to acquire, improve, or maintain the

property.

      Furthermore, the deed conveyed title to the property to the

parties as joint tenants with the right of survivorship, not as a

joint venture, and expressly stated this was Burke's intention.

The deed contained no covenants or conditions collateral to the

deed.   Thus, even if the parties had agreed to a joint venture,

that agreement became void, and the deed, not the agreement,

determined the parties' rights.           The deed expressly provided for

a joint tenancy with the right of survivorship.             Thus, each party

is entitled to an equal distribution of the net sale proceeds as

a matter of law.



                                     11                                A-2955-16T1
       Mitchell v. Oksienik, 380 N.J. Super. 119 (App. Div. 2005),

on which Burke relies, does not change this outcome. There, unlike

here, the unmarried parties jointly purchased property on which

they built a home, but title was taken in the defendant's name

only.    Id. at 123-24.   We affirmed the trial court's grant of

equitable relief to the plaintiff as a joint venturer.       Id. at

127.

       Nor does Baker v. Drabik, 224 N.J. Super. 603 (App. Div.

1988), on which Burke also relies, change the outcome.        There,

unlike here, the unmarried parties jointly purchased property and

took title as tenants in common, not as joint tenants with the

right of survivorship. Id. at 606.5 Accordingly, summary judgment

was properly granted to Bernardini on her partition claim.

                                III.

       On cross-appeal, Bernardini challenges the court's denial of

her motion for counsel fees pursuant to Rule 1:4-8.6


5
   Burke also relies on unpublished opinions to support his joint
venture claim. However, unpublished opinions do not constitute
precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170
N.J. 39, 48 (2001); R. 1:36-3.
6
  We decline to address Bernardini's additional argument that she
is entitled to counsel fees under N.J.S.A. 2A:15-59.1. She did
not raise this argument before the trial court and it is not
jurisdictional in nature nor does it substantially implicate the
public interest.   Zaman v. Felton, 219 N.J. 199, 226-27 (2014)
(citation omitted). We also decline to address her argument that


                                 12                          A-2955-16T1
     Counsel fee sanctions under Rule 1:4-8 "are specifically

designed to deter the filing or pursuit of frivolous litigation[.]"

LoBiondo v. Schwartz, 199 N.J. 62, 98 (2009).      A second purpose

of the rule is to compensate the opposing party in defending

against frivolous litigation.      Toll Bros., Inc. v. Twp. of W.

Windsor, 190 N.J. 61, 71 (2007).

     A litigant seeking a counsel fee sanction under Rule 1:4-8

must file a motion "separately from other applications" describing

"specific conduct alleged to have violated this rule."       R. 1:4-

8(b)(1); see also Toll Bros., 190 N.J. at 69.     The motion "shall

be filed with the court no later than [twenty] days following the

entry of final judgment."    R. 1:4-8(b)(2).

     Prior to filing such a motion, the litigant must "serve a

written notice and demand on the attorney or pro se party, which

must include a request that the allegedly frivolous paper [or

pleading] be withdrawn."    Toll Bros., 190 N.J. at 69.   This notice

is generally referred to as a "safe harbor" notice.       Ibid.    The

"safe harbor" notice

          shall (i) state that the paper is believed to
          violate the provisions of this rule, (ii) set
          forth the basis for that belief with
          specificity, (iii) include a demand that the
          paper be withdrawn, and (iv) give notice,
          except as otherwise provided herein, that an

she is entitled to counsel fees under Rule 5:3-5. Counsel fees
under that rule are only cognizable in Family Part actions.

                                 13                           A-2955-16T1
              application for sanctions will be made within
              a reasonable time thereafter if the offending
              paper is not withdrawn within [twenty-eight]
              days of service of the written demand.

              [R. 1:48-(b)(1).]

       A litigant making a motion under Rule 1:4-8 must include a

certification that he or she served a "safe harbor" notice and

must submit a copy of the notice.              R. 1:4-8(b)(1).     The litigant

must   also    "certify   that    the   paper    objected    to   has    not   been

withdrawn or corrected within the appropriate time provided herein

following service of the [safe harbor notice]."                Ibid.

       The court may award "reasonable expenses and attorneys' fees"

to    the   prevailing    party   on    a     motion   for   frivolous    lawsuit

sanctions.     R. 1:4-8(b)(2).     In order to establish reasonableness,

the moving party's attorney must submit an affidavit of services

conforming to the requirements of R.P.C. 1.5(a).                  The affidavit

of services must also include "a detailed statement of the time

spent and services rendered by paraprofessionals, a summary of the

paraprofessionals' qualifications and the attorney's billing rate

for    paraprofessional    services      to    clients   generally[,]"     and    a

statement as to how much the client had paid, "and what provision,

if any, has been made for the payment of fees to the                attorney in

the future."      R. 4:42-9(b) and (c).




                                        14                                A-2955-16T1
     Here, on July 22, 2016, Bernardini's attorney sent Burke's

what was arguably a "safe harbor" notice.   However, Bernardini did

not file a Rule 1:4-8 motion separately from her motion for summary

judgment and did not include the required certification and copy

of the "safe harbor" notice.     R. 1:4-8(b)(1).   She also did not

file a motion no later than twenty days following the entry of

final judgment, Rule 1:4-8(b)(2), and her attorney did not submit

an affidavit of services.   Failure to comply with the requirements

of Rule 1:4-8 warranted the denial of her motion for counsel fee

sanctions under Rule 1:4-8(b).   State v. Franklin Sav. Account No.

2067, 389 N.J. Super. 272, 281 (App. Div. 2006).

     Affirmed.




                                 15                         A-2955-16T1
