RHONDA KATZ v. N.T. CALLAWAY REAL ESTATE BROKER, LLC

NOT FOR PUBLICATION WITHOUT THE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 the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RHONDA KATZ, Individually, and as Assignee of the rights of Co-Tenant, ANITA BROWN,

Plaintiff-Appellant,

v.

N.T. CALLAWAY REAL ESTATE BROKER, LLC; NORMAN CALLAWAY, Individually and as Agent, Owner and/or Employee of N.T. CALLAWAY REAL ESTATE BROKER, LLC; and DEBRA COSTA, Individually and as Agent and Employee of N.T. CALLAWAY REAL ESTATE BROKER, LLC,

Defendants/Third-Party

Plaintiffs-Respondents,

and

ESTATE OF MAX KROSNICK, deceased,

Defendant/Third-Party

Plaintiff,

v.

STANLEY KOMITO and COLDWELL BANKER REAL ESTATE SERVICES, LLC d/b/a COLDWELL BANKER RESIDENTIAL BROKERAGE,

Third-Party Defendants.

____________________________________________

November 14, 2016

Before Judges Fisher and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1923-11.

Katz & Dougherty, LLC, attorneys for appellant (George T. Dougherty, on the briefs).

O'Connor Kimball, LLP, attorneys for respondents N.T. Callaway Real Estate Broker, LLC, Norman T. Callaway, and Debra Costa (Martin J. McAndrew, on the brief).

PER CURIAM

Plaintiff Rhonda Katz appeals, challenging an order granting summary judgment to defendants N.T. Callaway Real Estate Broker, LLC ("Callaway Real Estate"), Norman Callaway, and Debra Costa (collectively "the defendants"). We affirm.

I.

The following facts are taken from the parties' statements of undisputed facts and where indicated from the parties' deposition testimony.

Plaintiff found online a property located at the intersection of Maddock Road and Bear Tavern Road in Hopewell Township, Mercer County. The Property was near the Jacobs Creek Bridge, built in 1882, which connected the portions of Bear Tavern Road on either side of the creek. Plaintiff testified she appreciated the view of the historic bridge, the noise cars made crossing the planked bridge, and its bucolic setting. She also testified she liked that the bridge and the T-intersection approaching it slowed car traffic and could not accommodate large trucks.

Debra Costa of Callaway Real Estate was the listing agent for the Property for the owner Max Krosnick, since deceased. Costa described the Property in the Multiple Listing Service as containing a small house that was "once the 'gentleman's cottage' of an old estate." Costa felt the noise of cars crossing the bridge was detrimental to sale of the Property. In April 2007, Costa asked Krosnick's daughter if Krosnick had any knowledge about plans to "fix" the bridge. Costa testified she received no response. Costa asked someone in the Township municipal building if they knew of any plans to fix the bridge and was told they had no knowledge of any such plans. Costa testified she did not know it was a County bridge.

In the second week of November 2007, Costa was present when plaintiff visited the Property with third-party defendant Stanley Komito, whom plaintiff retained as her agent to purchase a residential property. Regarding this visit, plaintiff testified as follows. She asked Costa if the Property extended all the way to the shores of Jacobs Creek. Costa replied "no, the county took a small right-of-way in the 1960s." When Komito asked what the right-of-way was for, Costa responded "that the county took the right-of-way to be able to repair and maintain the historic bridge." Komito similarly testified Costa said the right-of-way was for the maintenance of the bridge.1

Plaintiff retained attorney Daniel Green to serve as her real estate counsel to review the agreement of sale, order a survey of the Property, and handle the title search. Green testified as follows. He recalled that in the title binder for the Property "there was a right-of-way agreement from the 1960s" which concerned "a potential road widening." Review of the documents showed a 1966 agreement indicating that the County had acquired property from Krosnick's predecessors "for the realignment of Bear Tavern Road."

Green testified he determined the agreement was not for a right-of-way but was a road grant deeding property to the County. Green explained that a "[r]ight-of-way is an access grant. Road grant means you're actually dedicating that piece of property to the township." Green noted that the road grant was reflected on the survey, which showed a triangular area between the property line and the fence running alongside Bear Tavern Road which was no longer part of the Property. Green testified the road grant was not limited to bridge maintenance, but could be used for road widening and other purposes.

Green testified it was his practice to explain such a road grant to a client, that he had a discussion with Komito at closing explaining "the consequences of a road grant" and the potential for a road widening, and that plaintiff was present for that discussion.2 However, Komito testified that he never had a discussion with Green about whether the County had a right-of-way.

Plaintiff testified the only discussion she had with Green at closing about the right-of-way was that he asked if she was "aware of the right-of-way," and she said yes. She testified he showed her the survey with the R.O.W. line indicated on it. She signed the survey indicating it was "Approved." Plaintiff testified "[t]he title report said that there was an easement and a road grant, from my recollection, but I thought that's what Debra [Costa] had explained to us." Plaintiff said she was unaware the title report showed that the County purchased the easement "for purposes of road realignment." Under our standard of review on summary judgment, we assume Green did not have any discussion with plaintiff or Komito beyond what plaintiff described in her testimony.

Plaintiff purchased the Property in December 2007. Eighteen months later, plaintiff put the Property on the market due to her financial issues. She testified she then learned from a neighbor that the County had plans for Bear Tavern Road and the 1882 bridge. The County secured permits, realigned the road to remove the T-intersection, and replaced the 1882 bridge with a modern structure capable of carrying trucks and cars at a higher speed.

In 2011, plaintiff filed a complaint in the Law Division against defendants and the estate of Max Krosnick. Plaintiff contended that the County had been considering replacing the 1882 bridge for over forty years. She noted that articles were published in 2001 through 2004 concerning the County's plans for the bridge and opposition to those plans. She argued defendants were aware of the County's plans.3 Plaintiff testified she never would have purchased the Property had she known the 1882 bridge was being replaced. She also testified the construction, realignment of the road, and replacement of the bridge interfered with her use of the Property and diminished its value.

Defendant's complaint alleged consumer fraud, common-law fraud, and negligence. On January 14, 2014, the trial court entered an order granting defendants' summary judgment motion. After plaintiff dismissed her claim against the estate, she appealed, arguing the court improperly dismissed her fraud counts.

II.

Summary judgment must be granted if the court determines "that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

We "review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must hew to that standard of review.

III.

The trial court's first reason for dismissing plaintiff's fraud counts against defendants was the "Entire Agreement" clause in the parties' real estate contract. The clause stated: "This Contract contains the entire agreement of the parties. No representations have been made by any parties, the REALTOR(S) or their agents, except as set forth in the Contract." Defendant argues the trial court erred in relying on the Entire Agreement clause. We agree, because plaintiff's claims allege fraud in the inducement of the contract.

"In general, the parol evidence rule prohibits the introduction of evidence that tends to alter an integrated written document." Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 268 (2006). Nonetheless, "the introduction of extrinsic evidence to prove fraud in the inducement is a well-recognized exception to the parol evidence rule." Walid v. Yolanda for Irene Couture, 425 N.J. Super. 171, 186 (App. Div. 2012). "[P]arol proof of fraud in the inducement is not considered as either additional or substitutionary but rather as indicating that the instrument is, by reason of the fraud, void or voidable." Id. at 185 (quoting Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J. Super. 369, 378 (App. Div. 1960)).

Thus, where "fraud in the inducement is charged, . . . testimony [is not] made inadmissible because the contract in suit includes a provision, 'This is our entire agreement, and cannot be changed orally.'" Schlossman's, Inc. v. Niewinski, 12 N.J. Super. 500, 506 (App. Div. 1951) (Brennan, J.). "[A] party to an agreement cannot, simply by means of a provision in the written instrument, create an absolute defense or prevent the introduction of parol evidence in an action based on fraud in the inducement to contract." Bilotti v. Accurate Forming Corp., 39 N.J. 184, 204 (1963) (quoting Ocean Cape Hotel, supra, 63 N.J. Super. at 377 78); accord Walid, supra, 425 N.J. Super. at 185.

Accordingly, the trial court erred to the extent it relied on the Entire Agreement provision as barring consideration of plaintiff's evidence of fraud in the inducement. Nonetheless, the trial court also considered alternative bases for summary judgment. Like the trial court, we find summary judgment appropriate on common-law fraud because Green had knowledge of the road grant, and that knowledge of plaintiff's attorney was imputed to plaintiff.

Plaintiff does not dispute Green's deposition testimony that he learned that: what was sometimes referred to as a County "right-of-way" was in fact a road grant deeding property to the County; and the road grant was not limited to bridge maintenance but could be used to widen Bear Tavern Road or realign it, which plaintiff contended enabled the County to remove the T-intersection and put in a higher-speed bridge.

Plaintiff denies Green conveyed that information to her or Komito. Nonetheless, that is not dispositive if such knowledge is legally imputed to plaintiff.

It is undisputed that, as Green testified, the road grant was recorded, included in the title binder, and noted in the exceptions. Generally, "whenever any deed or instrument . . . [is] duly recorded . . . such record shall, from that time, be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution of the deed or instrument so recorded and of the contents thereof." N.J.S.A. 46:21-1 (1963) (current version at N.J.S.A. 46:26A-12(a) (2012)). Thus, "a court will charge a subsequent purchaser with notice of a recorded instrument if it 'can be discovered by a "reasonable" search of the particular chain of title.'" Island Venture Assocs. v. N.J. Dep't of Envtl. Prot., 179 N.J. 485, 493 (2004) (citation omitted). Here, Green did discover it.

Moreover, as the trial court noted, "it has been held unequivocally that knowledge on the part of the attorney for a purchaser of land . . . of a defect in title is imputed to the client." Colegrove v. Behrle, 63 N.J. Super. 356, 364 (App. Div. 1960) (citing Dickerson v. Bowers, 42 N.J. Eq. 295 (Ch. 1886)). "Were it not so, in every case, in order to avoid the effect of notice, the party has only to put forward his agent." Dickerson, supra, 42 N.J. Eq. at 297 (imputing to the clients their attorney's knowledge of an unrecorded land transfer); see Weir v. City Title Ins. Co., 125 N.J. Super. 23, 31 (App. Div. 1973) (following Colegrove and Dickerson and finding a client "chargeable with the knowledge of the attorney"); see also Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 319 (App. Div. 2000).

"The imputation doctrine is derived from common law rules of agency relating to the legal relationship among principals, agents, and third parties. Pursuant to those common law rules, a principal is deemed to know facts that are known to its agent." NCP Litig. Tr. v. KPMG LLP, 187 N.J. 353, 366 (2006) (citing Restatement (Third) of Agency 5.03 (Tentative Draft No. 6, 2005)). The Restatement (Third) of Agency [Restatement] 5.03 (2006) sets forth the common law rule: "For purposes of determining a principal's legal relations with a third party, notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent's duties to the principal[.]" Ibid.; see NCP, supra, 187 N.J. at 366; Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 242 (2001); Handleman v. Cox, 39 N.J. 95, 104 (1963).

Under the Restatement, if "[a]n agent who acquires property for a principal may know or have reason to know material facts about the property, including facts relevant to other persons' interests and claims," then "[n]otice of such facts is generally imputed to the principal." Restatement 5.03 cmt. d(3). Indeed, the Restatement's illustrations address situations akin to this case. For example, knowledge is imputed when "P retains A to purchase Blackacre for P from S. A knows that T has an unrecorded equitable interest in Blackacre. A does not tell P and purchases Blackacre for P. P takes Blackacre subject to T's interest[.]" Restatement 5.03 illustration 18. Another illustration is even more pertinent

P retains A to purchase Blackacre for P from S. A learns that neighboring structures obstruct the scenic view from portions of Blackacre. Based on statements previously made to P by S, P believes that Blackacre enjoys unobstructed scenic views. A does not tell P what A has learned and purchases Blackacre for P. P seeks to rescind the purchase on the basis that P believed Blackacre's scenic view to be unobstructed. Notice of the fact of the obstruction, known to A, is imputed to P.

[Restatement 5.03 illustration 19.]

We find the Restatement's analysis persuasive. Thus, even assuming plaintiff's attorney did not tell plaintiff he learned the County had a road grant allowing the realignment of the road and thus the bridge which would disturb her view, her attorney's knowledge is imputed to her despite any alleged assurances to the contrary by Costa.

Plaintiff argues imputing knowledge here is contrary to NCP. NCP created "an exception to the imputation doctrine" so it would "not bar corporate shareholders from recovering . . . against an auditor who was negligent within the scope of its engagement by failing to uncover or report the fraud of corporate officers and directors." NCP, supra, 187 N.J. at 357, 372 & n.2. "The discussion in NCP [] must be considered in the atypical context in which the rule arose in that case." Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 409 (App. Div. 2011), certif. denied, 210 N.J. 478 (2012).

Plaintiff notes that imputation serves "to protect innocent third parties with whom the agent deals on the principal's behalf." NCP, supra, 187 N.J. at 366. However, "[i]mputing an agent's actions and knowledge to the principal serves several salutary purposes." Id. at 367. For example, "the imputation doctrine 'creates incentives for a principal to choose agents carefully and to use care in delegating functions to them,'" and ensures "the principal cannot avoid responsibility through ignorance." Ibid. (quoting Restatement (Third) of Agency, supra, 5.03 cmt. b (Tentative Draft No. 6, 2005)).

Here, Green was undeniably acting as plaintiff's agent. See Cohen v. Southbridge Park, Inc., 369 N.J. Super. 156, 161 (App. Div. 2004). He indisputably knew about the road grant which allowed the road and thus the bridge to be realigned. Thus, the trial court properly imputed Green's knowledge to plaintiff.4

That imputed knowledge was fatal to plaintiff's common-law fraud claim. Common law fraud has five elements: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Plaintiff cannot satisfy the reasonable reliance requirement. Given the imputed knowledge Green attained of the recorded document conveying the road grant allowing the county to realign the road and thus the bridge, it was not reasonable for plaintiff to rely solely on Costa's brief mention of a right-of-way. "[I]f a party to whom representations are made nonetheless chooses to investigate the relevant state of facts for himself, he will be deemed to have relied on his own investigation." DSK Enters., Inc. v. United Jersey Bank, 189 N.J. Super. 242, 251 (App. Div.), certif. denied, 94 N.J. 598 (1983); accord Walid, supra, 425 N.J. Super. at 180.

The effect of the imputed knowledge on plaintiff's CFA claim is less obvious because "the CFA 'does not require proof of reliance,' but only a causal connection between the unlawful practice and ascertainable loss." Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 528 (2010) (quoting Gennari, supra, 148 N.J. at 607 (distinguishing DSK, supra)). Furthermore, "causation under the CFA is not the equivalent of reliance." Id. at 522. However, we need not address whether plaintiff has shown causation. Defendant also argued to the trial court that plaintiff failed to show ascertainable loss. We agree.

"To prevail on a CFA claim, a plaintiff must establish three elements: '1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.'" Zaman v. Felton, 219 N.J. 199, 222 (2014)(citation omitted). Private plaintiffs must show they suffered an "ascertainable loss of moneys or property." N.J.S.A. 56:8-19. Thus, "a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005). The loss may not be "hypothetical or illusory," but must be "quantifiable or measurable." Ibid. A "plaintiff must suffer a definite, certain and measurable loss, rather than one that is merely theoretical." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 558 (2009).

"In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle[.]" Thiedemann, supra, 183 N.J. at 248. Here, plaintiff submitted no evidence she has or will suffer an out-of-pocket loss. Plaintiff also failed to submit an expert report, or an appraisal of the value of the Property after the County's actions. Thus, she failed to proffer "an expert . . . to speak to a loss in value of real or personal property." Id. at 249. "[B]y the time of a summary judgment motion, it is the plaintiff's obligation to be able to make such a demonstration or risk dismissal of the cause." Ibid.

Plaintiff alleges she lost the benefit of the bargain because the road grant allowed the County to realign the road and replace the bridge, disturbing the Property's bucolic setting with construction and traffic, interfering with her enjoyment of her Property, and depriving her of the aesthetic pleasures she derived from the historic bridge. "[A] benefit-of-the-bargain claim can[] support an ascertainable loss sufficient to allow a CFA claim to proceed to the factfinder; [however], it is the quality of the proofs that will determine a claim's viability." Id. at 252 n.8. Plaintiff "needed to produce specific proofs to support or infer a quantifiable loss in respect of [her] benefit-of-the-bargain claim; subjective assertions without more are insufficient to satisfy the requirement of an ascertainable loss." Id. at 252. Plaintiff failed to provide such proofs.

Moreover, "our courts have long recognized that 'non-economic damages are not recoverable under the CFA.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 340 (App. Div. 2013) (citations omitted). Our Supreme Court specifically declined to read the CFA "to encompass non-economic losses," including claims by home buyers of "interference with beneficial use and enjoyment of [their] new homes." Gennari, supra, 148 N.J. at 612-13. Similarly, "alleged invasions of [the] rights of privacy," Castro v. NYT Television, 370 N.J. Super. 282, 295 (App. Div. 2004), and "emotional injuries" are "non-economic damages that are not recoverable under the CFA," Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 152 (App. Div. 2005).

"[W]hen a plaintiff fails to produce evidence from which a finder of fact could find or infer that a plaintiff suffered a quantifiable or otherwise measurable loss as a result of the alleged CFA unlawful practice, summary judgment should be entered in favor of defendant." Thiedemann, supra, 183 N.J. at 238. Our de novo review shows that plaintiff failed to show ascertainable loss. Therefore, although the trial court did not reach the issue of ascertainable loss, we uphold its grant of summary judgment on the CFA claim.5

Affirmed.

1 Under our standard of review, we assume Costa made these statements although Costa testified to the contrary.

2 A protective order barred Green from testifying about written or oral communications between plaintiff and himself.

3 Defendants denied that they saw the articles and that they were aware of the County's plan to alter the bridge or the road.

4 There is no allegation Green was acting for his own purposes or was defrauding plaintiff. Cf. Restatement, supra, 5.04 ("[N]otice of a fact that an agent knows or has reason to know is not imputed to the principal if the agent acts adversely to the principal in a transaction or matter, intending to act solely for the agent's own purposes."); Clients' Sec. Fund of the Bar of N.J. v. Sec. Title & Guar. Co., 257 N.J. Super. 18, 31 (App. Div. 1992) ("Where the attorney is acting in his own interest or in fraud of his client, there is an exception to the general rule that knowledge of an attorney is imputable to his client, since it is almost certain that the attorney will then conceal the fraud or wrong."), aff'd, 134 N.J. 358 (1993).

5 Plaintiff's appellate brief does not contest the trial court's dismissal of her negligence count due to her lack of an expert on the standard of care. Although plaintiff does address the negligence claim in her reply brief, we will not consider it because "[i]t is improper to introduce new issues in a reply brief." In re Bell Atl.-New Jersey, Inc., 342 N.J. Super. 439, 442 (App. Div. 2001). In any event, the trial court dismissed plaintiff's negligence count because she failed to obtain an expert opinion on "the responsibilities and functions of real-estate brokers." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 444 (1993)). Plaintiff fails to show that an expert was not required.