                            NOT FOR PUBLICATION WITHOUT THE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-4256-17T4

IN RE THE ESTATE OF
RALPH A. GALLEGAN,
Deceased.
_________________________

                Submitted March 6, 2019 – Decided June 26, 2019

                Before Judges Fuentes and Moynihan.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Ocean County, Docket No. 199831.

                William J. Gearty, attorney for appellant Thomas
                Gallegan.

                Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC,
                attorneys for respondent The Estate of Ralph A.
                Gallegan (Jay Holub, on the brief).

PER CURIAM
      Ralph A. Gallegan1 died testate in Delaware, leaving his estate to seven

of his nine children, including Donna and appellant Thomas; he excluded two

sons, including William. At the time of his death, Ralph owned real property in

New Jersey commonly known as 24 Cornell Road, South Toms River (Cornell

Road) and 305 Lillian Lane, Toms River (Lillian Lane). He solely owned

Cornell Road. On June 23, 2006 he deeded Lillian Lane to himself and Donna

as joint tenants with right of survivorship.

      In response to a verified complaint filed in the Chancery Division by the

administrator of Ralph's estate for instructions as to Cornell Road and burial

plots located in New Jersey, 2 Thomas filed a counterclaim alleging in count one

that Donna, upon the June 2006 conveyance of Lillian Lane, executed a

mortgage to Ralph and "the agreement[] between those parties provided that

from the net payments due on her mortgage obligation, there would be an annual

distribution from Donna . . . to each of [Ralph's] children to coincide with the

commencement of the Christmas shopping season."             Thomas demanded


1
  We use the given names of the Gallegan clan, including those who now have
different surnames, to avoid confusion. We mean no disrespect or familiarity
by our practice.
2
  That complaint was resolved by way of consent order and is not the subject of
this appeal.


                                                                        A-4256-17T4
                                        2
production of the mortgage and documents relating thereto, an accounting of

monies due him and sale of the property with the proceeds applied to satisfy his

counterclaim. He also demanded in count three, among other relief, that the

court instruct the administrator to withhold distribution of estate assets until the

counterclaim was satisfied. 3

      Thomas appeals from the trial court's orders: granting respondent Ralph's

estate's summary judgment motion and dismissing Thomas's counterclaim;

denying his motion to reconsider that order; and awarding attorneys' f ees and

costs pursuant to Rule 1:4-8. He argues the trial court erred in granting summary

judgment because it failed to employ the proper burden of proof in determining

whether a material fact issue existed; evaluated the credibility of witnesses in

determining the existence of material facts; and material facts existed which

precluded entry of summary judgment.




3
   In count two of his counterclaim, Thomas demanded an accounting of rents
from his sisters, Anna and Diane, who he alleged were living in Cornell Road
without paying rent to Ralph's estate. Thomas did not brief any issue relating to
this count. "An issue not briefed on appeal is deemed waived." Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); 539 Absecon Blvd., L.L.C.
v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div. 2009)
(noting claims that have not been briefed are deemed abandoned on appeal).
We therefore will not address the grant of summary judgment as to that count.


                                                                            A-4256-17T4
                                         3
      We review the grant of summary judgment, under the same Rule 4:46-2(c)

standard that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment must be

granted if the court determines "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." R. 4:46-2(c). We "consider whether the competent evidential

materials presented, when viewed in the light most favorable to the non-moving

party, are sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995). We review the trial court's decision in these matters

de novo, and afford the trial court ruling no special deference. Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We agree

that the trial court did not consider the proofs through the appropriate lens and

reverse.

      The trial court ruled, "[m]y findings of fact will adopt and incorporate [the

estate's] statement of undisputed material facts . . . that was submitted by [the

administrator] as if more fully set forth herein." The court continued, "I find

they are both credible and well documented. Therefore I will incorporate those

findings of fact." The court's adoption of the administrator's submission did not


                                                                             A-4256-17T4
                                         4
analyze Thomas's contentions.       The record reveals Thomas submitted a

statement of disputed facts that countered many of those submitted by the

administrator. It was improper on summary judgment for the trial court to find

the administrator's facts credible. The proper analysis called for the court to

determine whether the competent evidence, under the light most favorable to

Thomas, was sufficient to warrant the submission of the matter to a jury for

determination.

      We also perceive the record contains disputed facts that preclude entry of

summary judgment. The trial court, rightly concluded Thomas's "speculation

that a mortgage existed on June 23 . . . , 2006 is not supported by the record" –

a fact conceded by Thomas in his merits brief – but then stated that he "has only

produced self-serving certifications of his wife and family members stating they

had knowledge of the existence of an obligation."

      The court conflated the non-existence of a mortgage document with the

record evidence that a payment obligation existed. The obligation, in the light

most favorable to Thomas, need not have been tied to a mortgage document.

Contrary to the estate's contention in its merits brief that the obligation had to

be proven, Thomas needed only present competent proof of the obligation in

order to defeat summary judgment.


                                                                          A-4256-17T4
                                        5
      Donna's contentions are set forth in her deposition testimony that is

included in the record. She admitted in depositions that she paid Ralph monthly

rent in the amount of $850 after she moved into Lillian Lane in 2002.

Subsequent to the June 2006 conveyance, Donna wanted her brother William to

live in Lillian Lane; Ralph objected. Donna told Ralph it was her house and she

could do with it what she wanted. Ralph responded, "it's not your house until I

die." After "a couple of weeks arguing," Donna told Ralph "I'll go and see what

the going rate of the houses are around here and I will pay you that because I

don't want you to tell me what I could do in my house." She said she "would

pay him that so [William] could live there." She "didn't want [William] living

on the streets. That's where the amortization table came in. And that's when

[she] started paying [Ralph $]1389.83."

      Donna deposed that after ascertaining the value of Lillian Road –

approximately $175,000 – Donna printed a fifteen-year amortization table, dated

February 2007, for that amount; the monthly payment was $1389.83. Donna

said that she told Ralph that she was "going to pay [him] that amount and

everything was to cease when he died, and that's why it ceased when he died."

When asked if that arrangement was ever reduced to writing, Donna said, "No.

This was a verbal thing between me and my father." When asked what Ralph's


                                                                       A-4256-17T4
                                      6
"reaction [was] to the offer," she replied, "He cashed the checks when he felt

like it." The estate's "Statement of Undisputed Material Facts" – that was

adopted by the trial court – claims "[t]he only debt that would be owed to her

father from [Donna] was during his lifetime to supplement his income and it

would cease upon his death."

      Thomas contends that his father told him the monthly payments would

continue after Ralph's death and would be paid annually as alleged in count one

of his counterclaim. Thomas certified that Ralph showed him and his siblings

"a large list of the dates of the payments and the amount expected to be made

by Donna." The record also reveals the administrator sent a letter to Donna

asking her the purpose of "an amortization schedule [found in Ralph's residence

after his death] that was sent to [Ralph] by [her] on January 6, 2007" that

"appear[ed] to be related to a fairly sizeable loan." Donna identified handwriting

on the amortization schedule next to the payment listed for March 2007 as

Ralph's; he wrote, "FIRST PAYMENT." Next to the February 2007 payment,

Ralph wrote: "RENT PAYMENT." Donna said her first payment of $1383.89




                                                                          A-4256-17T4
                                        7
was made in March, not February, 2007 4 and that she was paying that amount

"predicated on the value of the whole house."

      Other evidence in the record includes an exhibit to the administrator's

certification submitted in support of the estate's summary judgment motion:

copies of four checks – dated February 1, 2007; December 1, 2007; January 1,

2008; and June 1, 2008 – bearing Donna's purported signature, each written to

Ralph for $1383.89. "Mortgage Payment" is handwritten in the memo section

of the June 1, 2008 check. "Mortgage" is handwritten in the memo section of

the February 1, 2007 check. Thomas also submitted other sworn statements

from his wife, sister and from Ralph's brother and his wife evidencing that Ralph

stated his intention that Donna's payment would continue after his death to the

beneficiaries of his last will and testament.5

      The record supports the disputed claim that Donna agreed to pay $1383.89

beginning in 2007. The absence of a mortgage document does not obviate that


4
   The estate's "Statement of Undisputed Material Facts" claims "[t]he first
payment of $1,389 was February 2007." A copy of a check for $1383.89, dated
February 1, 2007, was attached to the administrator's certification in support of
the summary judgment motion; "VOID" was thrice handwritten on the check.
5
  Although Thomas mentions six sworn statements in his merits brief, the record
reveals certifications and notarized statements from five, not six, family
members: Thomas; his wife, Nancy; his sister, Theresa; Ralph's brother, John,
and his wife, Toni.
                                                                         A-4256-17T4
                                         8
disputed fact. The agreement was made after the transfer of title so it is of no

moment that a mortgage securing the obligation was not made or recorded. It

did not arise from the transfer of title but from Donna's reaction to the 2007

dispute about William living at Lillian Road. Donna admitted the agreement

was verbal. Two of Donna's checks attached to the administrator's certification

denote that they are for "mortgage" payments. That same term was used by John

and Toni in their notarized letter to describe the payments Ralph said were to

continue after his death. The nomenclature does not require the obligation to be

tethered to a mortgage. Although payments under the obligation were labeled

mortgage payments, it is a disputed fact that Donna was obligated to make the

payments set forth in the amortization schedule. The trial court erred in granting

summary judgment because there was no evidence of a mortgage. There was

evidence of an obligation.

      That obligation was supported by more than "self-serving" certifications,

the term used by the trial court to describe the sworn statements Thomas

proffered. In Chicago Title Insurance Co. v. Ellis, 409 N.J. Super. 444 (App.

Div. 2009), plaintiff – which sought to recoup funds from parents whose

daughter had defrauded a bank and given substantial funds to the parents –

contended that one parent's affidavit that the funds were actually a loan


                                                                          A-4256-17T4
                                        9
repayment was insufficient to defeat summary judgment because there was "no

documentary support for the alleged loan and it [was] merely a 'self-serving'

declaration." Id. at 463. We rejected that contention and determined, "[w]hether

self-serving or not, [the parent's] sworn statement that there was a loan to her

daughter is admissible evidence and sufficient to create a disputed issue of fact

about whether she gave fair value for the . . . payment, namely discharge of a

debt." Ibid.

      The same holds true in this case. As Thomas observes in his merits brief,

John and Toni were not named in Ralph's will; they had nothing to gain and their

notarized letter is not self-serving. Moreover, there was documentary and other

support for Donna's obligation; the annotated amortization schedule and checks,

as well as Donna's deposition testimony, present sufficient proof of an obligation

to preclude summary judgment.

      To be sure, the nature and terms of the agreement are uncertain. Why did

Donna continue to pay rent after she was added to the deed? If the reason for

the increase from $850 to over $1300 was linked to William's residence, why

were payments amortized out over fifteen years? And why were they amortized

over that period if they were to end when Ralph passed? And were the payments

to cease after his death or continue to be paid to Ralph's heirs?


                                                                          A-4256-17T4
                                       10
      The fact-finder should resolve any issues regarding Donna's alleged

obligation. These issues should not have been decided on summary judgment.

As such, we reverse the dismissal of count one and the related portion of count

three of Thomas's counterclaim.

      In light of our determination that summary judgment was improvidently

granted, we also reverse the award of attorneys' fees that the trial court ordered

Thomas to pay under Rule 1:4-8. Because that award was made against a party,

and not the attorney, N.J.S.A. 2A:15-59.1 is implicated. Toll Bros., Inc. v. Twp.

of W. Windsor, 190 N.J. 61, 70 (2007) (recognizing that "Rule 1:4-8 'governs

the procedure for fee applications both against parties under [N.J.S.A. 2A:15 -

59.1] and against lawyers under [Rule 1:4-8]'" (alterations in original) (quoting

Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div.

2001))). We note the trial court made no finding that Thomas acted in bad faith.

In Ferolito v. Park Hill Association, 408 N.J. Super. 401, 408 (App. Div. 2009),

we determined that when an application is made by a prevailing defendant

pursuant to N.J.S.A. 2A:15-59.1(b)(2) "and the plaintiff is represented by an

attorney, an award cannot be sustained if the 'plaintiff did not act in bad faith in

asserting' or pursuing the claim."    Id. at 407-08 (quoting McKeown-Brand v.

Trump Castle Hotel & Casino, 132 N.J. 546, 549 (1993)). We concluded,


                                                                            A-4256-17T4
                                        11
             a grant of a motion for summary judgment in favor of a
             defendant, without more, does not support a finding
             that the plaintiff filed or pursued the claim in bad faith.
             "[T]he burden of proving that the non-prevailing party
             acted in bad faith" is on the party who seeks fees and
             costs pursuant to N.J.S.A. 2A:15-59.1.

             [Id. at 408 (alteration in original) (citation omitted)
             (quoting McKeown-Brand, 132 N.J. at 559).]

      If the issue arises again, in determining whether fees are warranted, the

trial court should ensure that the moving party complies with the procedures

fully limned in Ferolito and Toll Brothers.

      We note Thomas did not address the denial of his motion for

reconsideration in his merits brief.     Though issues not briefed are usually

deemed abandoned, Lushis, 417 N.J. Super. at 657, our reversal of the grant of

summary judgment renders the appeal of the reconsideration motion moot.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                           A-4256-17T4
                                        12
