-: SJC 1 3 4 2 9
Kathleen M. Cerone, and another V J&K Furnace
-: And Attorney Williams, Whenever you're ready.
-: Good morning, And may it please the court.
I am Thalia Williams.
I represent the appellant in this matter and
I'm joined by my co-counsel, Jesse Belcher Tammy.
This is a, a fairly simple case in the sense
that the narrow issue that needs to be resolved
by this court is whether or not a severance
of a joint tenancy took place by operation
of a decree is simply incorporated
a party's agreement. It is my client's position
that that of course has not taken place.
Joint tenancy is such a significant property
right, and it is required to be created expressly
and in writing in an instrument.
So it would follow that in order
to waive that right that waiver would
also need to be expressed. This was a situation
where there was a partition case.
Yes, there is a Compromise Agreement,
but the Compromise Agreement is completely silent
as to how this property will continue to be held.
The agreement is silent as to whether or not
this benefits heirs, successors and assigns
if somebody were to pass away.
It does not state that there's any change
in the way that the parties are
holding this property and it simply just
contemplates a future sale. Yes.
With some parameters, but...
-: But doesn't, I mean, the appeals court decision
which is detailed, talks about possession, right?
That you're,
there's no longer possession... Right?
-: Right. But I...
-: The person clears out.
-: Your Honor, I think that there's a very clear
distinction between legal possession and
physical possession, in this matter.
This man had vacated in advance of them
ever entering into this agreement that
is reflected in his affidavit of objections.
It was a matter of him returning to remove some property.
-: Isn't The physical possession con, sort of converted it?
It, it, it, it takes on a legal...
Um, it becomes legal possession when you enter
into agreement on that, doesn't it?
-: I would disagree, your Honor.
It doesn't state that he can never return.
And although I understand that you can't,
dis-, that you can't credit my clients.
-: It's not, the issue is not whether he never returns.
It's whether he has the right to possession,
the same Right of possession, right?
-: And I would argue that legally he does.
-: But what's the basis for that?
-: That he has simply just vacated the property.
-: But no, he's entered into an agreement
that legally obligates him to leave.
-: But it doesn't indicate that he can
never return, and it does not indicate
that the ownership has, in any way, been changed.
If you think about it in the context of
let's say a separation agreement,
somebody might move out in the interim,
while a divorce is pending. They might be
joint tenants and by them moving out
they might even enter into a temporary agreement
that that person could never return.
But that doesn't necessarily change
their legal ownership of that property,
and ownership of that possession.
And in a divorce context...
-: This was the resolution of a petition for partition.
-: Yes.
-: And they both agreed to this deal,
and that deal was codified through the decree.
-: Correct.
-: And so that ended the petition for partition, right?
-: I don't think, it did not entirely.
If you follow the way the partition statutes
work, in order for something to operate
as a partition decision it has things that
have to be in there. There is an example
in the record of that, but one of the main
examples...
-: What if they had never, your client,
had never petitioned for partition?
-: They would still...
-: And instead had agreed to the settlement agreement?
-: I guess I'm misunderstanding the question.
So she did.
-: Yes you are. So here's the question.
The question is, what if I'm, I'm a joint tenant.
-: Yep.
-: Right? And I no longer wanna be a joint tenant.
Just like your client didn't wanna be a
joint tenant and instead of needing to file
a court action, I say, Hey dear joint tenant,
I no longer wanna own this with you.
Let's enter into an agreement.
-: Well, as long as there were writing that
was recorded...
-: Like a settlement agreement?
-: I, I'm not sure that a settlement agreement
is enough, but one joint tent...
-: Was it in writing?
-: The settlement agreement? Yes. But it does not
-: So what, what about it was deficient?
-: There's no reference within the agreement.
The four corners of the agreement as
to how it's held, and it's already been
acknowledged that it's held as joint tenancies,
'cause that's part of the initiating process.
There's nothing in the agreement that talks
about that changing. This isn't similar to
a divorce where we know we have a law
that once the "NISI' period ex, you know
it automatically switches to ten
tenancy in common. That's not the circumstance
that's here. They entered into this deed,
everybody agrees, time and title is not an issue.
Yes. They entered this as joint tenancies.
Now we're at a situation where that
has never been changed in writing.
They agreed to certain things to avoid the rest
of the lawsuit, to avoid the appointment
of a commissioner and to avoid that sale process.
-: And to terminate the petition for partition...
-: But it didn't terminate their individual
property rights and, and when...
-: But, but, but why?
I mean you say that, and that's the key question.
-: Yes.
-: But why?
-: It's missing, because it's missing
too many things, and that's, partial,
Part of that comes from the partition statutes.
When you have a partition judgment
it says you need to have these things
for it to be sufficient. One of those
things is a holding or a finding
of how, the nature of how these people
own this property. There's a case for,
I couldn't tell you the name off not my head,
but for example, there's a case that
held that that decree over here,
even though it said it was tenants in common
and the petition said it was joint tenants,
you're stuck with what came out over here.
This document is silent as to those issues.
There's nothing in that document that says we're
changing the joint tenancy. There's nothing
that would've informed Jane, who was "pro se"
at the time, that those rights were
gonna be changed. There's the intention
could have been because it's not in
there that they wanted it to remain
as a joint tenancy with rights of survivorship.
So what this really comes down to in this decree...
-: What, what about the agreement gives rise
to that interpretation?
-: I'm sorry?
-: Did they, what about the agreement
gives rise to the interpretation
that they wanted to maintain it as joint tenants?
-: It is not expressly waived.
-: So it's the silence in the agreement.
-: The silence in the agreement. There is
also no affirmative statements that say
that this is going to benefit
their heirs, successors, and assigns.
It is just between the individuals.
I think we'd be in a very different
circumstance right now if it said
we are gonna treat this, going forward,
as if we're tenants in common or
I want these rights to go through my estate.
-: So again, it's the silence.
-: I'm sorry.
-: You're standing on the silence in the agreement
-: Correct.
-: As to how they're gonna hold it in the future.
-: Correct. And since this is such a
significant property right that you
cannot create unless it's absolutely expressed.
-: Can you determinate it, unless it's absolutely expressed?
-: You can terminate it by alienation.
-: Okay.
-: Which in this case, there was
no other alienation. There was just the decree.
Neither party had taken their interest
and deeded it out to anybody else or
done anything under the law that
would have been deemed a different conveyance
or alienation. And we know from
the recent holding in battle, that conveyancing
is the point in time where the severance occurs.
-: For which unity?
Time, title, possession?
-: For all of them essentially.
-: So you read battle to apply to
all four unities?
-: Yeah. I think that at a time of
a conveyance all, all of the unities are gone
because the, the interest is completely
extinguished. In, in this case, un-
unless it was severed, Jane owns this
property outright 'cause it fully vested
in her the moment that Mr. Cerrone passed away.
So it really comes down to...
-: Right, at the beginning of that question is
what's before us, is if it was
not severed, the question is does
the settlement agreement sever it?
And your position is no, because it's silent?
-: Because it's silent as to these issues.
I also think that it doesn't even meet the normal
basic requirements of a settlement agreement.
Even if you were to just purely remove it
from the partition realm...
-: What are those basic requirements
of the settlement agreement? I'm not aware.
-: Very clear material terms that have finality
and then everybody can move on.
This wasn't the type of agreement
where everything was done. There was
a two year period of time where there
could be a refinancing and other
things could come up. There aren't terms
requiring her to sell. If you read that
just on the four corners, her only obligation
is to list the property for sale.
It may imply or contemplate a future sale
but it doesn't require it
it doesn't even include parameters as
to when an offer needs to be accepted.
So, arguably, she could be in compliance
with this by listing it, in perpetuity, and
never agreeing to any of the offers that came.
-: Isn't there an implied good faith?
-: Well, I'm not suggesting she would
act in in bad faith. I'm suggesting
that the only clear item in the agreement
that she has to follow, is to list it,
and then once listed, if ultimately sold,
there are other things that need to be done.
But in terms of analyzing this with battle,
it, it's the same as battle.
Different circumstances, different points
in the procedure but the conveyancing
event is contemplated in the future.
And that is when it would,
all the rights would be cut off,
is when that sale, in the future, happens.
(Silence)
(paper shuffling)
-: Anything else?
(shuffling pens and paper)
-: Unless the panel has additional
questions for me I think I'm going
to rest on our briefs.
-: Okay. Thank you very much.
-: Thank you.
(paper shuffling)
-: Okay, Attorney Esposito.
-: Good morning. May it please the court,
Mark Esposito for the plaintiff, Kathleen Cerrone.
(paper shuffling)
This case is completely different from battle
and battle was limited to the context
of partition by sale. This was not a partition by sale.
-: Why doesn't the settlement agreement here
fail to extinguish the joint tenancy,
in that, the terms of the agreement
seem to contemplate future action?
-: At some point in the future the
joint tenancy will be terminated, but...
-: Well they, they do contemplate future action.
But there's also, it, it is a decree
of the court and they, the parties,
explicitly agreed that it would enter
as, "The Judgment" in the case.
The fact that it is "The Judgment"
means that the partition proceeding
has terminated and a completed partition,
by definition, severs a joint tenancy.
-: But, but the termination of the
partition proceeding, which is hard to say,
does that necessarily mean that
there has been a partition?
Right?
So instead of executing
on what, um, Jane wanted,
the partition, the parties entered into agreement
to in the future,
you know,
terminate the
joint tenancy, and that terminated the partition
but didn't result in a partition, I think is the
the theory behind Jane's position here.
-: I agree that that is the theory,
-: But why is that wrong?
-: Because the unities of possession
and interest were severed.
-: But, but yeah, so explain that.
-: Mr. Cerrone no longer
had the right
to move back into the property.
I think it's clear, again, under sort of
ordinary principles of good faith,
if the agreement is you're gonna remove all
remaining property by a certain date,
you can't come back the day after
and say, "Okay, well now I'm moving back in."
And their interests were different,
because there's a possibility that Ms. Furnace
at her unilateral option, she's either gonna
own the entire property
or she's gonna sell
the property and Mr. Cerrone's gonna be
entitled to a portion of the proceeds.
But in either case, this is at
her sole discretion. Their interests
are no longer aligned or they're
no longer the same.
And so those unities
are, are both severed. There's also
the issue that,
so again
we say
the partition was completed, this was a final order
of the probate court, and the court
necessarily has the authority and the jurisdiction
to enforce its own final orders.
So even if it were the case that
the joint tenancy wasn't severed,
and of course we don't concede that.
Because you know, we think it was severed
both by the destruction of the unities
and by completion of the partition.
But even if that weren't the case,
there's a final order of the probate court
that mandates that Ms. Furnace take actions
that she has already agreed to take.
And it's her refusal to take those actions,
which she agreed to take, and which she was
ordered to take by the probate court,
that gave rise to the contempt proceeding
that led to us being here.
The...
-: So I don't actually know the
answer to this question. What if,
you and I enter into a contract to do something
in two years and then I drop dead?
Can my heirs enforce that contract?
-: I think it would depend on the
on the circumstances and what the terms were.
We also have in this...
-: Well let's just say we enter into this contract,
the one, the settlement agreement.
-: So I, which party are you in this example?
(laughter)
-: Whoever died, I don't remember.
-: So yeah, I mean you would be
able to enforce it. There is also
the issue here that, this wasn't just
a contract to do something in the future.
It wasn't just, "In two years,
we're gonna see what happens..."
This was, every month over the next
two years, you're gonna, Mr. Cerrone,
is gonna make these, half the mortgage payments.
This is a valuable benefit that Ms. Furnace
is getting, and she cashed those checks.
She got that benefit. She initiated
a partition proceeding, which by definition,
is gonna sever the joint tenancy.
So she can't have been surprised that, at the end
of the proceeding she no longer owned
the property jointly, with Mr. Cerrone.
-: I, I do have a question, if you can hear me.
-: Yes.
-: And that, and that is how would,
what happened in this case, where you've got
a, a decree, how would other parties, a mortgagor,
or people interested in the property,
or if somebody wants to put a lien on something,
how would they know this was partitioned?
-: So in this case the mortgagor,
sorry the mort-, I mean the, the bank,
the, the hol-, holder of the mortgage
was a party to the initial proceedings.
So they had actual notice. The appeals court
in this case sort of cautioned, in a footnote,
that it would perhaps have been wiser
for the decree to be recorded after it was issued
which was not something that happened
prior to Mr. Cerrone's death. This is not
a case where there's a bonafide.
-: So in general, counsel, what happens when a decree
in other circumstances is not recorded?
-: So if there were a bonafide purchaser
for value who had come in and bought
this property and, you know, somehow
Ms. Furnace got all the money, there, perhaps,
wouldn't be a claim by the estate
of Mr. Cerrone to try and claw back,
I don't know, something from the purchaser
because they didn't have notice.
You know, they didn't know. But that's,
that's not what happened here.
What happened here...
-: Right. I know that, but I'm just, I'm thinking
about other cases and I'm thinking about how we
frame this and part of recording things is to
put others, put the world on notice if there is,
if there is an interest in the property.
So how is the world on notice by this decree?
-: So, so in this case, I'm not sure
it's in the record, I believe there actually
was a list pendings filed at the time the
petition was initiated. But in addition to that
partition statute,
I believe in section seven...
(silence)
(silence continues)
So upon the filing of a petition for partitioner,
the petitioner shall forthwith cause to be filed
in the regi-, in the registry of deeds
for each registry district or any of the land
included in the petition, lies a notice of the same,
containing a brief description of the land.
And then it goes on to,
just outline what it is
that needs to be included in that notice.
But, so in this case had someone wished
to purchase the land they would have seen
that a partition proceeding was pending.
Again, I believe there also was a
list pendings filed. That person certainly
would've had a duty
to or, they at least
would've been on notice
that there was a
potential issue that
needed to
be investigated.
-: But the, but section seven it says they shall
file a notice,
would that,
but if, if that
isn't done under section seven, a proper notice
then would there be no partition?
Would the statute have been met?
-: So I mean, it, it, it would depend
on the circumstances. But the, the case
of Nichols v Nichols, it's it's a 1902 case,
but it's still good law. And it says
that, "The mere fact that an agreement
of the parties does not,
you know,
parrot all of the terms of the partition statute"
doesn't mean that it's not enforceable.
So if you make a deal...
-: That's, that's not saying that they
can just because they don't parrot the terms
of the statute, it's not enforceable.
What, what we're really getting at is
if you don't fulfill the requirements of the
statute by filing a notice is required under this,
did your tenants invoke this section?
(silence)
Mention the partition statute? What does it say?
-: I'm, I'm sorry I wasn't able to hear that question.
-: I'm, I'm wondering whether the (indistinct)
that you say is, was filed about this?
Did it invoke
the partition statute?
Did it say this is a partition petition pending?
-: I mean, as a factual matter, I,
I don't recall the answer to that.
But again, this is not a case where
there's a bonafide purchaser for value
who is being, you know, somehow prejudiced
because they didn't know what was going on.
This is a case where the very parties
to the agreement are the parties to
this litigation. Ms. Furnace knew full well
what she had to do under the agreement.
She initiated the partition, she signed
the agreement, she cashed the checks,
came time for her to perform her end of the,
the deal, which was also ordered in the,
in the decree. And she didn't, she no longer
liked the deal so much at that point
because now it was time for her to
fulfill her obligations. But so, the sort of...
-: Well our, alternatively, she had now full
ownership with no joint tenant, I think,
is what her position would be.
-: Yeah, I mean that, that would be
her position based on the completed partition,
based on the destruction of the unities.
I mean, I, I would say that's simply
not accurate. But even, even if we were
to say for the sake of argument that
the joint tenancy was not severed,
there's still the issue that this
was a final order of a court.
So regardless of who has title to the property
there's a binding court order that
was never appealed from. This was the final
decree and the partition proceeding and the
decree mandated that Ms. Furnace comply
with the steps that were set out
in the agreement. So it doesn't matter
who holds title.
-: Just remind me the agreement requires her to
list the property.
-: She had to list, either list it for sale by,
I believe June 1st, 2020, or she needed
to refinance and
make a payment to
Mr. Cerone by September 1st, 2020.
The drafting of that agreement I would say
is certainly not ideal, in a couple of
different respects but it was pretty clear
what the intent of the parties was.
And there is, I would not want to
be in the position of arguing that
my client's been ordered to list a property
but that means they can just leave
it listed forever and never sell it.
I mean, I wouldn't wanna make that
argument in court. I think it's pretty clear
what the parties were obligated to do
under the agreement, which again,
there are drafting problems with it
but the whole purpose of the partition
was that Ms. Furnace no longer wished
to own this property with Mr. Cerrone.
-: And in that context, the, the requirement
to list takes on a new meaning,
is what you're saying?
-: Yeah, I mean, this is in the context
of a partition proceeding, where
ordinarily, you would have partition
by
physical division, which,
which is favored but not practicable
for a single family home on, on a,
a lot with only room for one home.
So necessarily, if you can't divide it,
the only other alternative is sale.
And this is the proceeding that she brought.
She knows there's gonna be a sale of the
of the property or, I mean, or she can
buy out Mr. Cerrone's interest, which again,
is essentially a sale of the property.
So nothing that happened here was
anything that was outside of the scope of,
just the fact that it was a partition proceeding.
The entire purpose of the proceeding was
to ensure that these people who no longer
wish to own property together were
no longer going to own property together.
The proceeding was finished, by an agreement,
which was entered as a decree of
the probate court, and the destruction
of the unities, severs the joint tenancy,
the issuance of the decree, which is
a final decree and thus a completed partition
that severs the joint tenancy.
But even setting those issues aside, we still
have a final decree of a court
which has to be enforceable.
And that's under the Sommer vs Maharaj case,
that basically the court has the authority
to order compliance with its own orders.
So, even if it were correct, that somehow,
the joint tenancy survived, the destruction
of the unities and the joint tenancy survived
the completion of the partition.
Even if that were correct, we still have
a final order of a trial court that
was not appealed from and that mandates
that Ms. Furnace takes certain actions
which she made absolutely no attempt
to comply with. And so, even if the joint tenancy
were not severed it would not change
the outcome in this case which is that
the probate court's finding that Ms. Furnace
was in contempt of its decree, must be affirmed.