STEVEN BUDGE v. E.M.N. EXPRESS MORTGAGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1091-09T2

STEVEN BUDGE,

Plaintiff-Appellant,

v.

E.M.N. EXPRESS MORTGAGE

NATIONWIDE, INC., ANABELA

RIBEIRO, JAMAL ABU-DIAB,

GUY HENRY,1

Defendants,

and

TOM CHERICHELO2 AND LEONARDO

CASIERO,

Defendants-Respondents.

___________________________________

August 18, 2011

Argued October 20, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1250-04.

Steven Budge, appellant, argued the cause pro se.

David Paul Ericksen argued the cause for respondent Tom Cherichelo.

O. Gene Hurst argued the cause for respondent Leonardo Casiero.

PER CURIAM

Plaintiff, Steven Budge, appeals from the trial court order granting a directed verdict in favor of defendants, Tom Cherichelo and Leonardo Casiero. We affirm.

Plaintiff's complaint arises out of a failed real estate transaction. The facts surrounding the transaction are set forth in an earlier unpublished opinion, Budge v. E.M.N. Express Mortgage Nationwide, Inc., No. A-5592-05 (App. Div. Mar. 4, 2008), which we incorporate in this opinion:

Plaintiff had a long-standing interest in purchasing a particular parcel of real property in Aberdeen. On occasions during the ten years preceding the events in question, plaintiff indicated to the owner his willingness to purchase the property for $250,000. This offer was eventually accepted sometime in 2001. Although the complaint indicates that a copy of the contract was attached as an exhibit, we have been unable to locate it in the record on appeal even though numerous copies of the complaint are included in the parties' appendices.[ ]

Having obtained a contract to purchase the property, plaintiff considered obtaining a Small Business Administration (SBA) loan. Plaintiff discussed this with defendant Abu-Dia[b], an EMN representative, and applied through EMN for a $400,000 SBA loan. As part of the process, which he never completed, plaintiff provided a $5,290 deposit to EMN.

At some point, plaintiff advised a friend -- defendant Cherichelo -- about his purchase. Later, while plaintiff was storing equipment in the structure on the property in question, defendants Cherichelo and Casiero appeared and began looking around. According to plaintiff, Cherichelo indicated that he liked the property and wanted to become plaintiff's partner. Plaintiff declined.

In a subsequent conversation, Cherichelo asked plaintiff to allow him to finance the purchase because he thought he could earn greater interest on his money by making a loan to plaintiff. Plaintiff at first balked because he had already deposited funds with EMN regarding the SBA loan but, when assured by his attorney that EMN would return the funds, plaintiff agreed to allow Cherichelo to finance the purchase. Plaintiff prepared a written memorandum for his and Ch[e]r[i]chelo's signature in this regard, and plaintiff's counsel advised the seller that plaintiff was waiving the contract's mortgage contingency. EMN returned the deposit to plaintiff, retaining only the $350 application fee.

The memorandum prepared by plaintiff, which outlined the terms of Ch[e]richelo's alleged oral agreement, was never signed.[ ] And, shortly before the scheduled closing of March 8, 2002, plaintiff lost contact with Cherichelo. Cherichelo gave what plaintiff alleged were bogus excuses for not meeting with him and failed to return plaintiff's telephone calls. As a result, plaintiff was unable to close, and the property was sold to Ch[e]richelo's friend, defendant Casiero.

[Id. at 3-5.]

Plaintiff commenced a common law fraud action, naming as defendants Cherichelo, Casiero, Express Mortgage Nationwide, Inc. (EMN) and its employees, Anabela Ribeiro, Jamal Abu-Diab and Guy Henry. Id. at 5. Upon the completion of discovery, defendants moved for summary judgment. Ibid. The court granted the motion, concluding that the action was governed by the statute of frauds. Id. at 6. We reversed the grant of summary judgment to Cherichelo and Casiero and remanded for further proceedings. Id. at 10-11. We concluded that plaintiff's cause of action was not premised upon his attempt to enforce an oral agreement. Rather, we concluded that plaintiff's complaint was an action for damages

based upon a fraudulent scheme which had, as its chief instrument, the alleged oral agreement. In other words, plaintiff does not seek a judgment that would require Cherichelo to comply with the alleged oral agreement, as to which the statute of frauds would come into play; he seeks damages based upon the fact that he lost the opportunity to purchase the property because he was misled by Cherichelo's alleged oral promise, which was allegedly designed to get him to abandon his pursuit of SBA financing. Accordingly, the statute of frauds has no application here and does not bar the action.[ ] Instead, the viability of the action must be examined against the elements of common law fraud.

[Id. at 7-8.]

Trial commenced before a jury. Plaintiff, appearing pro se, testified on his own behalf and called as witnesses: (1) his attorney, Paul Mirabelli, who was representing him in connection with the real estate transaction and who referred him to EMN for a mortgage; his brother, John Budge, through whom he first met Cherichelo; his wife, Janet; and defendants, Cherichelo and Casiero. After presenting his case, both defendants moved for a directed verdict, arguing that plaintiff failed to prove an essential element of his fraud claim, damages. The court agreed and granted the motion. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration.

POINT I

THE TRIAL COURT ERRED IN GRANTING DIRECTED VERDICT FOR DEFENDANT, AFTER PLAINTIFF HAD RESTED HIS CASE, FOR NOT HAVING A PRIMA FACIE CASE WAS [ERRONEOUS,] MANDATING REVERSAL AND REMAND FOR A NEW TRIAL.

POINT II

THE DEFENDANTS['] MISCONCEPTION OF THE RECORD, THE LAW AND CONSTANT ERRONEOUS OBJECTIONS WAS PREJUDICIAL AND IMPROPER[,] MANDATING REVERSAL AND REMAND.

A. ERRONEOUS OBJECTIONS, WHILE PLAINTIFF WAS ON THE STAND READING FROM ORAL DEPOSITIONS OR INTER[R]OGATORIES BECAUSE THAT PARTY WAS NOT ON THE STAND [WERE] ERRONEOUS AND PREJUDICIAL[,] AND MORE PROBATIVE TESTIMONY COULD HAVE COME TO LIGHT AGAINST DIRECTED VERDICT[,] ESPECIAL[L]Y WHEN PLAINTIFF AGREED TO READ FROM SAME WHILE DEFENDANTS WERE ON THE STAND AND OBJECTED AGAIN FOR IMPEACHING DEFENDANTS['] WITNESS ON DIR[]ECT. ERRONEOUS AND PREJUDICIAL MANDATING REVERSAL OF THE DIRECTED VERDICT.

B. ERRONEOUS OBJECTIONS, TRYING TO USE PHONE RECORDS AS EVIDENCE OR AT LEAST AS NOTES AND FOR PEOPLE ON THE STAND COULD USE FOR MEMORY REASONS.

C. ERRONEOUS OBJECTIONS[] TO NOT ALLOWING INTER[R]OGATORIES AND DEPOSITIONS INTO EVIDENCE OR TO BE USED WHILE DEFENDANTS WERE ON THE STAND.

D. CONSTANT OBJECTION TO IMPEACHING DEFENDANTS WHILE ON STAND[,] THEY WERE CONSIDERED HOSTILE WITNESS.

E. THE USAGE OF ADMINISTRATION CIVIL ACTION TO ATTACK PLAINTIFF[']S CREDIBILITY IN VIOLATION OF RULE 404(B).

F. THE COURT PLAINLY [ERRED] IN GRANTING SAME.

POINT III

DIRECTED VERDICT IN THIS INSTANCE WOULD BE UNCONSTITUTIONAL.

We are satisfied, from our careful review of the record, that plaintiff presented no evidence that he suffered some loss or injury as a result of defendant's fraudulent conduct. As such, the court properly entered the directed verdict in favor of defendants. Because the arguments advanced in Point II relate to evidentiary rulings that did not involve damages, we deem it unnecessary to address those rulings, which included precluding plaintiff from reading to the jury portions of the oral depositions and answers to interrogatories, precluding plaintiff from introducing phone records into evidence or utilizing those records to refresh the recollection of witnesses, barring any opinion testimony from plaintiff regarding the value of the property, and prohibiting plaintiff from treating defendants as hostile witnesses in order that he may pose leading questions to them. Plaintiff's arguments contained in Point III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Rule 4:37-2(b) permits, upon motion, the entry of a directed verdict in favor of a defendant "on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." At this stage of the trial, the court is not concerned with the worth of the evidence presented but only with the existence of some evidence, when viewed most favorably towards the party opposing the motion, which could sustain a judgment in a plaintiff's favor. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Moreover, the motion should be denied if plaintiff's case rests largely upon the resolution of credibility issues. Alves v. Rosenberg, 400 N.J. Super. 553, 566 (App. Div. 2008).

"A misrepresentation amounting to actual legal fraud consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment." Jewish Cntr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981). An essential element of common law fraud is proof of damages by way of detriment. Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 43 (App. Div. 2000).

Here, in opposing defendants' motion, plaintiff argued that he suffered the loss of the property as a result of his reliance upon Cherichelo's misrepresentations. However, he presented no proof, as part of his case, that had he completed the application process with the SBA or any other lender, he would have received the loan and in fact closed on the property. What he presented was evidence that the SBA had no record of any application from him for a loan and a letter from its general counsel advising that the SBA had not had any dealings with EMN and, in the ordinary course of its business, would not deal with a mortgage broker, but directly with a lender.

Plaintiff is correct that "punitive damages may be awarded in the absence of compensatory damages" where a defendant's conduct has been willful and egregious. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 50-51 (1984). However, at a minimum, there must be some loss or injury to a plaintiff. Id. at 51.

At the time plaintiff approached Cherichelo to advise that he had reconsidered his offer to finance the real estate transaction, plaintiff had already withdrawn his application with EMN in January 2002 after he was called back to EMN's office to complete paperwork that he had previously completed months earlier. Plaintiff testified that he walked out of their office because he "felt something smelled." Through his father-in-law, he was able to contact someone within the SBA who advised him that his name was not in the system. Thereafter, plaintiff had no further dealings with EMN other than seeking the return of his deposits, and he did not separately pursue a loan application with the SBA. Because plaintiff presented no evidence that had he completed the loan process with the SBA or any other lender, it would have been approved, his claimed loss of the property due to Cherichelo's misrepresentation is purely speculative.

Moreover, as to defendant Casiero, plaintiff presented no proof that he made any false representation. In response to the court's question during argument on the motion as to what false representation was made by Casiero, plaintiff stated: "Personally to me, Judge. Oh, no, Judge, I never said that he spoke to me. That's not part of the case." Thus, in addition to the failure to present a prima facie case of any loss resulting from Cherichelo's action, plaintiff also failed to establish the other elements of a fraud claim against Casiero.

In short, viewing all the facts presented in plaintiff's case in chief in the light most favorable to plaintiff, his proofs fell short of establishing at least some loss or injury sufficient to warrant submission of his fraud claim against Cherichelo to the jury, and his proofs failed to satisfy any of the elements of a fraud claim against Casiero. Therefore, defendants were entitled to the involuntary dismissal of plaintiff's complaint pursuant to Rule 4:37-2(b).

1 These defendants are not part of the present appeal. Under A-5592-05T1, on March 4, 2008, we affirmed the summary judgment granted to E.M.N. Express Mortgage Nationwide, Inc., Anabela Ribeiro, Jamal Abu-Diab and Guy Henry. However, we reversed the orders of summary judgment granted to Thomas Cherichelo and Leonardo Casiero and remanded the matter for further proceedings. Plaintiff now appeals from the August 31, 2009 order dismissing the complaint with prejudice following a jury trial and motion for a directed verdict.

2 Also spelled Cherichello and Chirichelo in the record.