On appeal from the Superior Court of New Jersey, Gloucester County, Law Division, Docket No. L-432-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
Defendant appeals from a July 11, 2006 Law Division order determining the respective real property interests of the owners of 60 and 62 Washington Avenue, Monroe Township, in the third- floor attic space of their attached side-by-side duplex. A bench trial was held on June 20, 2006. In a comprehensive twelve-page written decision, the trial judge made findings, including the factual finding that neither defendant's deed nor any other writing "evidences the asserted transfer of ownership of the full attic to defendant . . . . The deed descriptions divide the parcels via the common wall without reference to defendant's claimed interest in the attic space within the bounds of the adjoining 62 Washington Ave." Judge Morgan concluded, "[d]efendant has not shown by clear and convincing evidence proofs which overcome the Statute of Frauds," N.J.S.A. 25:1-13, see Morton v. 4 Orchard Land Trust, 180 N.J. 118, 125 (2004), or otherwise that defendant acquired legal title to or an equitable interest in the attic. Finally, Judge Morgan concluded the absence of proof confirming the seller's intention at the time defendant purchased the property defeats her assertion for reformation of the deed based upon mutual mistake.
A confirming order for judgment was entered on July 11, 2006, declaring plaintiff the fee simple owner of the attic space above his dwelling, as defined by the deed's legal description, and denied defendant's counterclaim for damages, costs and expenses, and to reform the deed.
On appeal, defendant asserts error to the trial court's findings of fact, as well as its legal determination that the Statute of Frauds had not been overcome. Defendant also challenges the trial court's dismissal of the requests presented in the counterclaim.
Defendant supports her position by citing the testimony of June Manley, who first purchased 62 Washington Avenue from Robert Potter, the owner who divided the original house into a twin home. Manley stated that, neither during the period she had rented nor after her purchased the home, did she have "access" to the attic, as the attic entrance was on the other side of the duplex. The court questioned Manley further on this issue:
THE COURT: Now, why is it that you think that you didn't have access to the attic?
THE WITNESS: I know I didn't have access to the attic. I had no access to it at all.
THE COURT: Well, when you say no access, what does no access mean to you?
THE WITNESS: I had no attic space.
THE COURT: No attic space. Let me ask this, though. When you say you had no access, does that mean you had no way ...