CAROL SEGAL v. R.C. Search Co., Inc.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0316-05T30316-05T3

CAROL SEGAL,

Plaintiff-Respondent,

v.

RICHARD CECERE,

Defendant,

and

R.C. SEARCH CO., INC.,

Defendant-Appellant.

___________________________________

 

Submitted May 8, 2006 - Decided May 31, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

DC-10278-05.

Daniel B. Shapiro, attorney for appellant.

Carol Segal, respondent pro se.

PER CURIAM

Defendant R.C. Search Company, Inc. appeals from a Special Civil Part Judgment in the amount of $1000 in favor of plaintiff, Carol Segal. We affirm.

Segal foreclosed on a tax sale certificate giving his company, Sherwood Group Associates, the right to possess certain property. He called defendant's employee, Richard Cecere, Jr., and ordered title insurance in the amount of $4,000,000. Plaintiff claims that, at the time, he told Cecere that the property had been the subject of a tax foreclosure and the name of his attorney. Plaintiff testified that Cecere told him the premium would be $13,000. On November 8, 2004, plaintiff sent Cecere a check from the account of Aida and Carol Segal for $1000, payable to defendant. The check had a written notation "TITLE INS 405-15-17-18." On November 15, 2004, defendant received an R.C. Search Co., Inc. order form via fax from Segal's attorney giving the property location and the amount of the purchase price, indicating Sherwood Group Associates, LLC as the owner or seller. The order form did not indicate anything about a title search.

Defendant's principal, Fidelity National Title Insurance Company of New York (Fidelity), had a policy, evidenced by a June 11, 2003, memorandum sent to all its New Jersey agents, that title insurance would not be issued on a tax foreclosure or on an initial sale to a bona fide purchaser during the calendar year following the entry of a foreclosure judgment. Despite this policy, defendant undertook a search on the property after receiving plaintiff's check.

On December 7, 2004, defendant sent an invoice to plaintiff's attorney in the amount of $633.50. On December 15, 2004, defendant wrote to the attorney, apologizing because it was unable to insure the property and attaching a copy of the June 11, 2003, memo from Fidelity. Defendant's December 15 letter also stated, "All monies already paid will be refunded." On December 28, 2004, defendant issued a check made payable to the order of Aida Segal returning $366.50 of the $1000 previously paid. Plaintiff claims he never received the check. At trial, Cecere claimed he did not know at the time he first received the order that the property was the subject of a foreclosure and learned it for the first time after doing the search.

Entering judgment in favor of plaintiff, the trial judge found defendant knowingly accepted payment from Segal at a time defendant knew or had reason to know that there was a tax lien against the property. She also noted that at the time Segal first initiated any dialogue with Cecere, Cecere knew he would be doing a title search on property that was subject to a tax lien as well as Fidelity's policy that it would not issue title insurance for a year.

On appeal, defendant initially asserts, for the first time, that N.J.S.A. 17:46B-35 prohibits it from refunding plaintiff's title search fees. Normally, an appellate court will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available, "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.), certif. denied, 162 N.J. 131 (1999) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)). Even though defendant's contention does not warrant discussion on appeal, we nonetheless point out that the cited statute does not address search fees, rather it proscribes title insurance companies and agents from giving any financial incentives or special favors or advantages to prospective clients as an inducement to insure.

Defendant also contends that the judge erred in her determination because the proofs established that plaintiff's counsel had apparent authority to act on plaintiff's behalf and in that capacity ordered the search. Again, we disagree. The attorney was never called as a witness. Accordingly, there was no evidence from the attorney as to what he ordered. Additionally, there was nothing on the order form indicating that a search was ordered. More importantly, defendant's letter to the attorney, dated December 15, clearly amounted to an apology and indicated that all monies would be refunded. Presumably, defendant recognized its mistake. We add that the December 15 letter was, according to Cecere, signed by his father, the principal owner of the corporation.

Simply put, there was sufficient credible evidence on this record for the judge to conclude that defendant was aware that the property was the subject of a foreclosure and its principal would not provide title insurance for such property at the time Segal called for title insurance. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Under these circumstances, the judge appropriately found that plaintiff was entitled to a complete refund.

Affirmed.

 

At trial, defense counsel erroneously referred to Cecere, Sr., the owner of R.C. Search Co. as Cecere, Jr.

(continued)

(continued)

5

A-0316-05T3

May 31, 2006