SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1288- 22
CRAIG S. G IU NTA and DEBORAH S. GI UNTA, Plaintiffs-Appellants,

v. GAIL R. BERAN, Defendant-Respondent.

____ ______________________

Argued January 9, 2024

– Decided February 27, 2024 Before Judges Gooden Brown and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L

- 0641

- 19. David A. Kasen argued the cause for appellants (Kasen & Kasen, PC, attorneys; David A. Kasen, on the brie fs). Shawn D. Edwards argued the cause for respondent (Maselli, Mills & Fornal, PC, attorneys; Shawn D

. Edwards, of counsel and on the brief; Nicholas J. Loiodice, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1288

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Plaintiffs Craig S. Giunta and Deborah S. Giunta a ppeal from the Law Division 's November 18, 2022 order granting summary judgmen t to defendant Gail R. Beran and dismissing plaintiffs' complaint with prejudice.
I. Defendant and her husband, Barry J. Beran, were bot h practicing attorneys. I n October 2003, Barry 1 filed a Certificate of Incorporation form ing G.I.B.J., Inc. with himself and defendant each as fif ty percent shareholders, and then registered Beran & Beran 2 as an alternate name for the corporation. Ten days later, defendant transferred her shares of sto ck to Barry, who then owned one hundred percent of the company. Defendant worked part-time as an attorney at Beran & Beran between 1986 and 2007 but left the firm to work full-time f or the New Jersey Office of the Attorney General, where she was a Deputy Attorn ey General until 2014. She then worked for the New Jersey Department of Correc tions from 2014 until her retirement in 2020. Defendant was aware the firm c ontinued to be named Beran

1 Where the parties or individuals have the same last name, w e refer to them by their first names. No disrespect is intended.

2 We recognize that, after defendant's departure from the firm, its name did not comply with Rules of Professional Conduct (RPC) 7.5 (c) and (d). However, a viol ation of the RPCs does not establish a cause of act ion. See Estate of Barbuto v. Boyd & Boyd, 462 N.J. Super. 580, 5 91

- 92 (App. Div. 2020).3 A- 1288

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& Beran and testified at her deposition her husband retained the name "to honor" her. In March 2011, plaintiffs retained Barry and Beran & Beran to represent them in filing a petition for bankruptcy to stop a tax sale certificate foreclosure of their home. Deborah found Beran & Beran after s he look ed through the phone
book and realiz ed the office was across the street from her home. Both t he street sign in the firm's business complex and the exterior door to the office had Beran & Beran listed, along with Harvey M. Beran, who wa s Barry's brother and unaffiliated with the firm.
Plaintiffs attended an initial meeting with Barry, where they both signed a retainer agreement. During the meeting, Deborah asked Barry if defendant was a partner of Beran & Beran, to which Barry resp onded yes. Deborah did

not ask whether defendant would be working on the case and assumed Barry would be handling it by himself. Deborah did not c onduct any research on defendant before retaining Barry. Deborah provided Barry with a retainer check made o ut directly to him

. On August 1, 2012, plaintiffs were copied on a lett er from Barry to the Camden County Sheriff's Office, wherein the letterhead onl y named Barry. Plaintiffs

never met or spoke with defendant.4 A- 1288

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Plaintiffs' bankruptcy petition had to be filed by April 16, 2012 in order to prevent them from losing all ownership assets in their residential property. Barry failed to timely file the petition and on Jul y 11, 2012, a final judgment was recorded, foreclosing all plaintiffs' rights in the property. On August 10, 2012, after receiving notice of the foreclosure, Ba rry filed the bankruptcy petition. On July 10, 2014, plaintiffs filed a legal malpract ice complaint against Barry and Beran & Beran. Defendant was not named i n the complaint and neither Barry nor the firm filed an answer. On November 17, 2015, the court entered an order of final judgment by default again st Barry and Beran & Beran in the amount of $128,771.41. Plaintiffs attempted to collect the debt but were unsuccessful in their efforts. On February 18, 2019, plaintiffs filed a complaint against defendant alleging she, as an individual partner of Beran & Beran , wa s liable for the debts and obligations of the partnership. Plaintiffs sou ght the amount of the judgment plus post -judgment interest. Defendant was served with the complaint but did not file an answer, and the court entered default j udgment on March 25, 2020. She then filed a motion to vacate, which was grante d, and filed an answer.5 A- 1288

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Prior to the decision on appeal, t he trial court denied defendant's motion for summary judgment in March 2021 and subsequent m otion for reconsideration in May 2021 because it found there were issues of material fact

. In October 2021, the court denied defendant's motio n for a Lopez 3 hearing on the same grounds. A year later, defendant filed a second motion for s ummary judgment. After reciting the undisputed facts, the court dete rmined defendant was entitled to judgment as a matter of law. In reaching its decision, the court relied on Estate of Barbuto, 462 N.J. Super. at 588 as controlling:

In that case, the evidence[] [at] trial established that defendant and W. Boyd were married. She left the f irm after the second child was born. She worked part-time. Never worked full-time. The name changed from Boyd and Boyd to Boyd and Boyd, PC. Defendants never ha d a partnership agreement. And it never spoke

— this defendant never spoke with and met the decedent; ne ver performed any legal services [for] her. They were provided by the husband. And the [c]ourt indicate[d] there was just not enou gh there. Their conclusion was defendant is not liabl e as [a] purported partner unless plaintiff can establis h that Barbuto relied on a representation defendant was a partner while she was employed . . . to provide leg al services.

3 See Lopez v. Swyer, 62 N.J. 267 (1973) (the applica bility of a discovery rule is an issue for the trial court to decide on equita ble principles outside the presence of the jury).6 A- 1288

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In applying the holding in Barbuto , t he court found: So, in essence, the biggest reliance placed by the plaintiff in this matter is . . . on the sign that said Bera n [&] Beran. Now, it doesn't say partnership. And w hen you walk in the door there's also a Harvey Beran th ere. Comm on [] sense to me says that the sign is not enough. Otherwise, such esteemed deceased attorney such as Brown Connery could be responsible. That's what th e law firm is called. Their name is out there. But they're absolutely not involved in a case.
I just don't find that there is any material statemen t of fact in this matter. There's just no evidence that [defendant] . . . was purported to be partner. The re's no reliance . . . that [plaintiffs] went because of he r expertise. The husband and wife statement[ 4 ] came out on an affidavit after the depositions were taken. This appeal follows, wherein plaintiffs raise the following issues for our consideration:

I. THE JUDGE BELOW ERRED WITH RESPECT TO RULING THAT [DEFENDANT] WAS NOT A PARTNER IN BERAN & BERAN.
II. FACTS AND ARGUMENTS WHICH SHOULD HAVE BEEN CONSIDERED BY THE COURT

4 In their opposition to defendant's motion, plaintif fs submitted a certification from Deborah that stated, "We felt very comfortable knowing that we were going to be represented by husband-and-wife lawyers who would look out for our interests so that we would not lose our home," although she had not testified to this statement during her deposition.7 A- 1288

- 22 BELOW, WHICH GAVE RISE TO MATERIAL FACTS IN DISPUTE. We disagree and affirm.
II. An appellate court's review of a trial court's orde r granting summary judgment is reviewed under the same standard employ ed by the motion judge. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). The que stion is whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact, or whether the evidence is so one-si ded that one party must prevail as a matter of law. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. , 224 N.J. 189, 199 (2016); see also Brill v. Guardia n Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is proper if the record demonstrates " no genuine issue

as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 ( App. Div. 2009) (quoting R. 4:46

- 2(c)). " An issue of

fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non -moving party, would require8 A- 1288

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submission of the issue to the trier of fact." R. 4:46 -2(c). This standard permits the court to consider "whether the evidence prese nts a sufficient disagreement

to require submission to a jury or whether it is so one -sided that one party must prevail as a matter of

law." Brill, 142 N.J. at 533, 536 (citation omitted). Summary judgment should only be denied upon a showi ng by the nonmoving party that some evidence creates a genuine i ssue as to any material fact challenged. Ibid. The fact at issue must be mater ial to the case and cannot be "of an insubstantial nature , [ or ] a mere scintilla, 'fanciful, frivolous, gauzy or merely suspicious. '" Id. at 529 (citation omitted). Here, plaintiffs sought relief from defendant under the theory that she was a partner in the firm and therefore responsible for its ob ligations. A partnership can be established in fact, arising out of contract or implied through the parties' conduct. See Kozlowski v. Kozlowski, 164 N.J. Super. 162, 17 1 (Ch. Div. 1978) . It can also be established by estoppel, where a third party has relied on representations of partnership, whether or not such a partnership existed. Ibid. N.J.S.A. 42:1A-20(a) imposes liability on a purported partner only when an individual "relies upon the purported partnershi p" or "upon the representation" of the purported partnership in ent ering the transaction with the partnership. Estate of Barbuto , 462 N.J. Super. at 5 89

- 90

.9 A- 1288

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N.J.S.A. 42:1A-20(a) provides: If a person, by words or conduct, purports to be a partner, or consents to being represented by anothe r as a partner, in a partnership or with one or more per sons not partners, the purported partner is liable to a person to whom the representation is made, if that person, relying on the representation, enters into a transa ction with the actual or purported partnership. If the representation, either by the purported partner or by a person with the purported partner's consent, is mad e in a public manner, the purported partner is liable to a person who relies upon the purported partnership ev en if the purported partner is not aware of being held out as a partner to the claimant. If partnership liabi lity results, the purported partner is liable with respe ct to that liability as if the purported partner were a p artner. If no partnership liability results, the purported partner is liable with respect to that liability jointly an d severally with any other person consenting to the representation. To prevail under this theory, plaintiffs are requir ed to show: (1) defendant held herself out to be a partner of Beran & Beran; or (2) defendant consented to Barry's representation that she was a partner of Be ran & Beran; and (3) plaintiffs relied on the representation in retaining Beran & Beran. We agree with the trial court's finding , while viewing the evidence in the light most favora ble to plaintiffs, they failed to raise genuinely disputed issues of fact and therefore defendant was entitled to summary judgment.10 A- 1288

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As the trial court found, defendant did not hold he rself out to be a partner of Beran & Beran. Plaintiffs never met defendant or spoke with her during their retention of Barry and Beran & Beran. No documents reviewed by plaintiffs had defendant's name. Other than the signs on the street and door, which listed Beran & Beran, there was no evidence that defendant represented herself to be a partner to the plaintiffs. Likewise, there was no evidence defendant consented to a representation that she was a partner at Beran & Beran. Deborah asked Barry if his wife was a partner of Beran & Beran, to which he responded yes . However, she also testified Barry did not specifically say defendant worked at the firm and she did not ask any other questions regarding defendant's p osition there. The record is devoid of any evidence showing defendant was aware of or consented to Barry' s statement she was a partner at the firm. And even if defendant' s consent can be inferred from the public signage , plaintiffs failed to present sufficient evidence es tablish ing they reli ed on th at representation in their retention of the firm. Deb orah testified they hired Beran & Beran after looking through the phone book for ba nkruptcy lawyers and realizing the office was in proximity to their home

. She did not research defendant nor did she ever meet her. To the extent plaintiff belatedly certified11 A- 1288

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she was relying on a "husband-and-wife" team to rep resent her, we agree with the trial judge that this assertion falls short of establishing reliance because plaintiff did not believe defendant would be workin g on their case. Affirmed.