On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
[166 NJSuper Page 3] Plaintiff brought this action against her son Ralph Biddle and her son's former wife Patricia Biddle to impose an equitable lien based on an alleged purchase money resulting trust upon Ralph and Patricia's former marital residence in Little Silver. Ralph defaulted. On the day of trial prior to the presentation of testimony Patricia
succsssfully moved to dismiss the complaint and plaintiff appeals.*fn1
Plaintiff advanced money to her son Ralph and his then wife Patricia for use as payment on a lot and a home subsequently built thereon. Plaintiff claims that the advance was a loan and that she, Ralph and Patricia agreed that she was to have an equitable interest in the property and was to be paid a sum proportionate to her contribution (57%) if it was ever sold. Patricia contends the advance was an unconditional gift. Legal title was held by Ralph and Patricia as tenants by the entirety.
When Patricia and Ralph Biddle litigated their divorce action, plaintiff moved to intervene therein in order to assert her claim to an interest in the property. She apparently contended that her interest should be considered when the matrimonial judge determined the value of the property and the subject of equitable distribution. Her motion was denied and no appeal or motion for leave to appeal therefrom was taken. At the trial of the divorce action Ralph apparently argued that plaintiff's lien claim reduced the value of the premises subject to equitable distribution and increased the debts he and his wife owed. Plaintiff testified in the divorce action in support of her lien claim. The divorce judgment expressly awarded Patricia full title to the premises "free and clear of any alleged liens by Ralph T. Biddle and Anna M. Biddle against the title."
The divorce judgment was never appealed. Four months after entry of that judgment plaintiff filed this action asserting her claim to a lien on the premises. The trial judge granted Patricia's motion to dismiss this action, concluding that the judgment in the divorce action barred relitigation of plaintiff's claim. We disagree and reverse.
Generally, adjudication of an issue or claim does not, by operation of res judicata or collateral estoppel, bar a person not a party or privy to a party to the prior action from seeking another adjudication of the issue or claim because every person is entitled to his day in court. Brunetti v. New Milford , 68 N.J. 576, 587 (1975); Bd. of Directors, Ajax, etc., v. First Nat'l Bank of Princeton , 33 N.J. 456, 463 (1960); Lehigh Zinc and Iron Co. v. N.J. Zinc and Iron Co. , 55 N.J.L. 350, 357 (E. & A. 1893): Restatement, Judgments 2d (Tent. Draft No. 2, 1975), § 78(3) at 2; 46 Am. Jur. 2d, Judgments , §§ 518-519 at 669-671. Here Ralph Biddle could not be plaintiff's privy by operation of law because his legal ownership interest in the land, a tenancy by the entirety, conflicted with plaintiff's claim. Bd. of Directors, Ajax, etc., supra 33 N.J. at 463. Plaintiff plainly was not a party to the divorce action. However, Patricia argued, and the trial judge found, that plaintiff's alleged participation in the divorce action and Ralph's assertion of her claim as part of his case established that plaintiff actually consented to adjudication of her claim therein, received her day in court, and was bound by the divorce judgment notwithstanding her non-joinder as a party to that action.
Defendant's contentions suggest several possible theories that might bar plaintiff from bringing this action. Plaintiff may have expressly or impliedly authorized her son to prosecute the claim in her behalf, making him her representative in fact and binding her to the adjudication. Restatement, Judgments 2d (Tent. Draft No. 2, 1975), § 85(1) (b) at 56, and comment (b) thereto at 59-60; 50 C.J.S. Judgments § 776(a) at 306; 46 Am. Jur. 2d, Judgments , § 538 at 694-695;
see Lyon v. Stanford , 42 N.J. Eq. 411, 414-415 (E. & A. 1886). Plaintiff may have controlled or substantially participated in control of the presentation of her claim to the extent that she was a real party, not a nominal party, and therefore should be barred from relitigation. Petersen v. Preferred Accident Ins. Co. , 114 N.J.L. 180, 183 (E. & A. 1935); Ludy v. Larsen , 78 N.J. Eq. 237, 242-243 (E. & A. 1911); Lyon v. Stanford, supra 42 N.J. at 414; Restatement, Judgments 2d (Tent. Draft No. 2, 1975), § 83 at 44; 46 Am. Jur. 2d, Judgments , §§ 535-537 at 688-694; 50 C.J.S. Judgments §§ 782-783 at 317-320, §§ 785-786 at 321-322. Possibly plaintiff actually did submit her claim for adjudication notwithstanding the denial of her motion to intervene. Miller v. Headley , 109 N.J. Eq. 436, 433-444 (Ch. 1932), aff'd o.b. 112 N.J. Eq. 89 (E. & A. 1933); Lake v. Weaver , 80 N.J. Eq. 395, 401 (Ch. 1912), aff'd o.b. 80 N.J. Eq. 554 (E. & A. 1912); Sbarbero v. Miller , 72 N.J. Eq. 248, 254 (Ch. 1907), aff'd o.b. 74 N.J. Eq. 453 (E. & A. 1908); 50 C.J.S. Judgments § 784 at 320. Indeed, the trial judge on the motion to dismiss found that Ralph had advanced plaintiff's claim on her behalf and that she had participated to the full extent possible as if her motion to intervene had been granted. However, the judge's conclusions could only have been the result of speculation because Patricia did not provide him with an adequate record to make any factual findings with respect to her contentions.
It was incumbent upon Patricia as the party asserting a bar by judgment, to present to the judge so much of the record of the divorce proceeding as was necessary to support her contention that plaintiff should have been bound by the judgment. See State v. Ebron , 61 N.J. 207, 215-217 (1972); Robinson-Shore Develop. Co. v. Gallagher , 26 N.J. 59, 68 (1958); Knutsen v. Brown , 96 N.J. Super. 229, 234-237 (App. Div. 1967). Patricia only supplied the trial judge with ...