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Storey v. Darden


August 8, 2007


On appeal from the Superior Court of New Jersey, Gloucester County, Law Division, Docket No. L-432-04.

Per curiam.


Argued July 24, 2007

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 of getting up into the attic[?]

THE WITNESS: Well, I would have to go on to the other property.

THE COURT: Does no access mean more to you, as in what you just said, that the attic was not yours to use?

THE WITNESS: It wasn't part of the dwelling that we purchased.

THE COURT: Okay. Whose -- in your understanding who did own the attic?

THE WITNESS: I believe it was the resident at 60 Washington Avenue.

THE COURT: Okay. Now, my original question, though, is this. What is it that you rely upon that gave you that understanding?

THE WITNESS: It never existed. It wasn't there. It wasn't accessible to me. It wasn't included. I had part of a basement for storage that was accessible to me on my side of the duplex.

THE COURT: Was your understanding based on the fact that you didn't have a stair to the attic or was it something else?

THE WITNESS: At that time it was something I never really ever thought about. I never had attic space. It just didn't come with the dwelling, so I never questioned it or didn't question it at that time.

Judge Morgan determined that Manley's testimony had confirmed that the full attic space was for defendant's exclusive use, however, the court is satisfied that while the testimony of defendant and her witness June Manley, is sufficiently credible to demonstrate on the weight of the evidence that it was the intention of the parties that defendant would have full use of the attic, defendant has not been able to show by clear and convincing evidence that a transfer of the fee simple interest was intended.

The trial judge then reviewed the balance of the evidence militating against defendant's position, which included the tax assessment records for each home allocating the attic space; the testimony of plaintiff's seller who had access and use of the attic above his home throughout his ownership, the deed description which divides the parcels via a common wall without reference to a reservation of exclusive ownership of the full attic to defendant, and the lack of an agreement of sale.*fn1

We have analyzed the record in the light of the written and oral arguments advanced by the parties and prevailing standards of law. We conclude that the findings of fact and conclusions of law made by Judge Morgan are binding on appeal because they are "supported by adequate, substantial and credible evidence" in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Based on our review, we are in substantial agreement with the rationale Judge Morgan articulated in his written decision and affirm the judgment as entered. R. 2:11-3(e)(1)(A).


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