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McNutt v. Estate of McNutt

November 6, 2009

KEVIN W. MCNUTT AND GLORIA J. MCNUTT, PLAINTIFFS,
v.
ESTATE OF BARRY D. MCNUTT AND, ANDREA H. KASARSKY, DEFENDANTS.



The opinion of the court was delivered by: Wolfson, District Judge

OPINION

Presently before the Court are cross-motions for summary judgment filed by pro se plaintiffs, Kevin McNutt and Gloria McNutt, his wife (collectively "Plaintiffs"), and Andrea Kasarsky ("Kasarsky"), the widow of Kevin McNutt's brother, Barry McNutt, and the Estate of Barry McNutt (collectively, "Defendants"). This suit arises out of an alleged oral agreement between Barry and Kevin McNutt. In this paradigmatic case demonstrating the old adage that "no good deed goes unpunished," Plaintiffs argue that summary judgment should be granted against Karsarsky in both her personal capacity and as the executrix of Barry McNutt's estate; plaintiffs seek damages in the amount of $650,000, plus interest, for breach of contract as well as punitive damages. They also seek an undetermined amount to satisfy a mortgage on a piece of land in dispute, Lot 25.03, plus interest. Defendants have filed opposition to Plaintiffs' motion and cross-moved for summary judgment. For the reasons stated below, Defendants' cross-motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED.

I. Factual Background.*fn1

Sometime in the 1970's, Kevin McNutt and Gloria McNutt acquired land located in Frenchtown, New Jersey, which had been previously owned by Barry and Kevin McNutt's parents. (G. McNutt Tr. 33-9 to 34-8). This land is divided into three lots: Lot 25, 25.02, and 25.03 (collectively "Lots"). (Compl. ¶ 1); (Decl. Mathews Ex. B) (adopted as statement under oath by Gloria McNutt at G. McNutt Tr. 13-4 to 10, 20-18 to 22-7, and Kevin McNutt at K McNutt Tr. 17-19 to 23); see also (G. McNutt Tr. 30-22-24, 33-19 to 34-8). Gloria McNutt has been the record owner of Lot 25 since 1997. (G. McNutt Tr. 32-14 to 16); (K. McNutt Tr. 65-13 to 14). In 1984, Plaintiffs sold Lot 25.03 to Equity Lenders Corp. in lieu of foreclosure. (Mathews Decl. Ex. F). Plaintiffs live on Lot 25 (G. McNutt Tr. 10-5 to 6), and Plaintiffs' daughter Holly lives on Lot 25.02. (Id. at 9-5 to 6). Barry McNutt moved from Frenchtown to Ann Arbor Michigan in 1969. (Decl. Heisel ¶1). Two years later, he moved to Virginia. (Id.).

Plaintiffs allege that, in exchange for Kevin McNutt having taken responsibility for Barry McNutt's alleged felony theft of electrical service on the Lots in 1984 - while Plainttifs owned all three properties - Kevin McNutt and Barry McNutt entered into an oral "real estate contract" in March of 1987 concerning the Lots (the "1987 Agreement"). (Decl. Mathews Ex. B) (adopted as statement under oath by Gloria McNutt at G. McNutt Tr. 13-4 to 10, 20-18 to 22-7, and Kevin McNutt at K McNutt Tr. 17-19 to 23). Plaintiffs claim that Barry McNutt and Kevin McNutt entered into the 1987 Agreement at a meeting in the law office of George K. Walton, Esq.; George Walton,*fn2 Kevin McNutt, Gloria McNutt, Barry McNutt, Martha Heisel (Barry McNutt's then-wife),*fn3 and Herbet J. Heisel, Esq. (Martha Heisel's father, now deceased) were all in attendance at the meeting (the "1987 Meeting").(K. McNutt Tr. 24-18 to 26-14, 47-20 to 48-15, 114-21 to 115-4); (G. McNutt Tr. 86-14 to 88-17). The parties agree that Kasarsky was not present at the 1987 Meeting.*fn4 (Decl. Kasarsky ¶ 1); (K. McNutt Tr. 114-21 to 115-4); (G. McNutt Tr. 86-14 to 88-1). According to Plaintiffs, in the 1987 Agreement Barry McNutt agreed to (1) obtain a mortgage on Lot 25.02 (which was, at that time, owned by Barry McNutt), (2) disburse funds from that mortgage to Plaintiffs, (3) underwrite and pay for all costs for "extensive maintenance and repair" of the Lots, and (4) satisfy a mortgage to Equity Lenders Corp. on Lot 25.03.(K. McNutt Tr. 34-5 to14, 111-13 to 114-3); (G. McNutt Tr. 86-14 to 88-17).

On January 17, 1987, three months before the 1987 Agreement, Barry McNutt purchased Lot 25.02 from Plaintiffs for $130,000 (Decl. Mathews Ex. C), paying $30,000 in cash and, on March 16, 1987, obtaining a purchase money mortgage from First Fidelity Bank for $100,000. (Decl. Mathews Ex. D). Plaintiffs allege that they paid and satisfied this mortgage in full on April 8, 2002.*fn5 (G. McNutt Tr. 37-25 to 39-6); (Decl. Mathews Ex. E). On July 20, 1987, Barry McNutt purchased Lot 25.03 from Equity Lenders Corp. for $29,400, paying $14,400 in cash and obtaining a purchase money mortgage for $15,000 from Equity Lenders Corp. (Decl. Mathews Ex. F & G). This mortgage has not been satisfied, but Equity Lenders Corp. has not declared a default (despite payment in full required by August 1, 1992), no foreclosure or other collection proceeding has been commenced, and Equity Lenders Corp. has been out of business since at least 1994. (Decl. Mathews Ex. G & H) (A. Kasarsky Tr. 48-1 to 49-18). Plaintiffs have also produced sixteen checks Barry McNutt sent to Kevin McNutt between June 4, 2001 and November 11, 2003, totaling $21,571 (Ex. 14-17).

Barry McNutt married Kasarsky on May 14, 1995. (A. Kasarsky Tr. 7-7 to 8) (Decl. Kasarsky ¶ 2). Barry McNutt worked on the Lots with Kevin McNutt; Kasarsky accompanied him "infrequently" on these trips. (A. Kasarsky Tr. 28-11 to 13, 30-3). Barry McNutt became ill in 2001. (Decl. Kasarsky ¶ 2). Plaintiffs allege that, in a three-way phone call between Barry McNutt, Kevin McNutt, and Kasarsky in early November 2003, shortly before Barry McNutt's death, Barry McNutt instructed Kasarsky, his wife, to continue funding the 1987 Agreement. (K. McNutt Tr. 61-5 to 63-23; 89-23 to 92-11). Kasarsky denies being a part of this phone call, or that this phone call ever took place. (Decl. Kasarsky ¶¶ 3-5). Barry McNutt died on November 16, 2003. (A. Kasarsky Tr. 7-9 to 13). Barry McNutt's will bequeathed Lots 25.02 and 25.03, subject to any encumbrances, to Kevin McNutt. (Decl. Mathews Ex. I).

Kasarsky and Plaintiffs remained in contact after Barry McNutt's death. Plaintiffs have produced eight checks Kasarsky sent to Kevin McNutt between November 17, 2004 and May 24, 2007, totaling $26,696.99 (Ex. 19-21), and six letters Kasarsky sent to Kevin McNutt with these checks, some of which reference the money she was sending to him. (Ex. 23, 26, 32-35). Kasarsky contends that she sent this money "out of the goodness of [her] heart" to continue to pay the real estate taxes for Kevin McNutt on Lot 25.02 and 25.03 (Decl. Kasarsky ¶ 8), and to try "to help [her] deceased husband's brother get on his feet and revive his pre-existing business." (Id. at ¶ 9). Along with this financial help, Kasarsky encouraged Kevin McNutt over the years to find work and suggested ways that he could obtain income by renting out the Lots. (Ex. 26, 33, 35). As time passed, Kasarsky became "alarmed" that Kevin McNutt had still not rented out any of the Lots, nor had he used his "fleet of trucks," and other equipment she had purchased for him, to find work. (Decl. Kasarsky ¶¶ 10 -12); (Ex. 35). Kasarsky finally refused to send any more money to Plaintiffs after Kevin McNutt filed a construction lien against her in October 2008. (A. Kasarsky Tr. 37-3 to 20); (K. McNutt Tr. 66-19 to 24, 68-8).

II. Procedural History

Count I of the Complaint alleges that Kevin McNutt and Barry McNutt "participated in a contract agreement for extensive maintenance and repair" of the Lots in March of 1987, pursuant to which Barry McNutt was to supply labor for two weekends each month and purchase materials and machinery. (Compl. Count I, ¶¶ 1-2). It further alleges that Kasarsky, Barry McNutt's widow, now has the responsibility, both personally and as executrix of Barry McNutt's Estate, to pay funds to Kevin McNutt under the 1987 Agreement(Id. ¶ 3), including the payment of taxes and insurance on the Lots, because Barry McNutt "instructed" Kasarsky to do so shortly before he died. (Id. ¶¶ 8, 9).Count I also alleges that Kasarsky did pay for taxes and insurance on the Lots until a "recent date." (Id. ¶ 9). Count II alleges that Kasarsky's refusals to further perform the 1987 Agreement were deliberate, intentional, and malicious and Plaintiffs demand punitive damages. (Compl. Count II, ¶¶ 1, 2). Count III alleges that Barry McNutt is the owner of record of Lot 25.03 (despite it being bequeathed to Kevin McNutt) (Count III, ¶ 1), that there is an unpaid mortgage on that property (Id. ¶ 2), and that Kasarsky is obligated, both personally and as executrix of Barry McNutt's Estate, to satisfy that mortgage. (Id. ¶ 4). Plaintiffs seek damages in "an amount to be calculated to date to satisfy Equity Lenders, the mortgage holder, plus interest." (Id.). Finally, Count IV charges that Kasarsky's actions were deliberate and intentional and Plaintiffs seek punitive damages. (Count IV, ¶¶ 1-2).

Plaintiffs, residents of Frenchtown, New Jersey (G. McNutt Tr. 4-12 to 14); (K. Mcnutt Tr. 4-1 to 3), originally brought suit in the Superior Court of New Jersey, Law Division, Hunterdon County on November 14, 2008. (Ex. 30). Kasarsky, a resident of Arlington, Virginia (A. Kasarsky Tr. 5-1 to 4), filed a Notice of Removal, pursuant to 28 U.S.C. § 1332, on January 2, 2009. (Def. Notice of Removal). Defendants filed an Answer on January 26, 2009. (Def. Ans.). Plaintiffs filed a motion for summary judgment on May 19, 2009. (Pl. Mot. Sum. J.). Defendants cross-moved for summary judgment on May 22, 2009 (Def. Mot. Sum. J.), and filed opposition to Plaintiffs' motion on June 1, 2009. (Def. Reply).

DISCUSSION

III. Legal Standard

Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn ...


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