GLORY-ANN DRAZINAKIS v. NEW JERSEY ASSOCIATION OF REALTORS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0368-06T20368-06T2

GLORY-ANN DRAZINAKIS,

Plaintiff-Appellant,

v.

NEW JERSEY ASSOCIATION OF

REALTORS and HUNTERDON-SOMERSET

ASSOCIATION OF REALTORS,

Defendants-Respondents.

_______________________________________

 

Argued July 10, 2007 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Hunterdon

County, Docket No. HNT-L-237-06.

Clement J. Farley argued the cause for

appellant (McCarter & English, attorneys;

Theodore D. Moskowitz and Mr. Farley,

of counsel; Mr. Farley and Kevin J.

Licciardi, on the brief).

Barry S. Goodman argued the cause for

respondents (Greenbaum, Rowe, Smith &

Davis, attorneys; Mr. Goodman, of counsel

and on the brief; Michael A. Klein, on

the brief).

PER CURIAM

Plaintiff Glory-Ann Drazinakis appeals from the order of the Law Division, dismissing her cause of action against defendants, New Jersey Association of Realtors (NJAR), and Hunterdon-Somerset Association of Realtors (HSAR). Plaintiff is a member of both defendant associations.

In recognition for reaching a certain annual level of business activity, (described as at least thirty homes rented or sold, totaling at least $25 million), the HSAR issues the "Circle of Excellence (COE) - Platinum Award." Plaintiff claims that defendants wrongly denied her right to receive this "highly prestigious award."

She thus filed this action in the Law Division, consisting of five different counts. The first count seeks a judicial declaration that she is entitled to receive the award. The second count seeks compensatory and punitive damages from defendants for their interference with a property interest. The third count seeks injunctive relief, counsel fees and cost of suit, based on defendants' alleged violation of a "Public Interest and Public Policy." The fourth and fifth counts seek compensatory, punitive damages, and attorneys fees, based on a general allegation of negligence and bad faith.

Given the procedural posture of the trial court's ruling, we will accept and recite plaintiff's material claims, taking them directly from her complaint. According to plaintiff, "shortly after submitting her 2005 COE Award application . . . [she] submitted a draft print media advertisement for . . . fundraiser." That advertisement "contained the statement that Plaintiff was a recipient of the 2005 Platinum COE Award."

Plaintiff sent a version of the advertisement "to the Recorder Newspaper in January 11, 2006." Plaintiff admits that she "inadvertently forgot to delete the 2005 Platinum COE Award designation from the Recorder Ad prior to its submission to the Recorder newspaper on Monday, January 16, 2006." It is equally undisputed that at the time this occurred, plaintiff was aware that NJRA Rule #1 specifically prohibited her from advertising or publishing the receipt of such an award prior to February 1, 2006.

This Rule is written in clear and direct language, disallowing "good faith" or "inadvertence" as a defense for its violation. The penalty for violating the Rule's clear injunction is also plainly stated.

ENFORCEMENT:

In the event of any violation of Rule #1, no matter who is responsible for the creation or submission of the advertisement, NJAR shall enforce this rule as follows:

1. The applicant shall be ineligible to receive the award for the year in which the applicant has applied and shall be ineligible to apply for the following year.

2. There shall be no right to appeal to NJAR from any such determination by the local board/association.

In addition to the provisions of Rule #1, upon submitting her award application, plaintiff also agreed to be bound by the guidelines governing the manner in which NJAR selected the eventual winner. Specifically, paragraph seven of the affidavit signed by plaintiff as part of the application packet contained the following restrictions:

We acknowledge that in the event the Application is rejected for any reasons or for no reason, or is revoked as set forth in paragraph 9 or pursuant to Advertising Rule #1, we waive any right to file any and all claims for damages or other relief against NJAR, our LOCAL BOARD/ASSOCIATION OF REALTORS, and their officers, directors, members, and employees[.]

Here, both sides agree that, in reviewing plaintiff's claims, we must apply the two-part test articulated by the Supreme Court in Rutledge v. Gulian, 93 N.J. 113, 118 (1983). This requires us to determine whether plaintiff has (1) "an interest sufficient to warrant judicial action," and (2) whether that interest has "been subjected to an unjustifiable interference by the defendant." Ibid.

To determine whether NJRA's action is "unjustifiable," we must weigh both plaintiff's and NJRA's "competing interests." We must consider whether there is any overriding public interest that requires judicial intervention. Stowell v. N.J. State Ass'n of Chiefs of Police, 325 N.J. Super. 512, 516 (App. Div. 1999).

Finally, NJRA's status as an association of realtors triggers a heightened standard of review. As we noted in Cipriani Builders Inc. v. Madden, 389 N.J. Super. 154, 165 (App. Div. 2006):

Our courts also distinguish between membership decisions of private associations whose activities are primarily social or fraternal, such as the Masons and Elks, and membership decisions of associations whose activities directly affect the economic interests of their members, such as professional societies and trade associations. If a professional society or trade association exercises "virtually monopolistic control" over a form of economic activity, a court will be especially vigilant in protecting the interests of members and prospective members.

[(Internal citation omitted).]

Against the undisputed facts described earlier, and mindful of these legal principles, we affirm substantially for the reasons expressed by Judge Armstrong in his well-reasoned oral opinion, delivered from the bench on August 18, 2006. We add only the following brief comment. It is clear to us that plaintiff's conduct, together with the waiver she executed as condition for being considered for the award, provide sufficient grounds to sustain the trial court's ruling.

Affirmed.

 
 

Although denominated as a motion for summary judgment under Rule 4:46-2, the court reached its decision pursuant to the provisions of Rule 4:6-2(e), which permits a party to file a motion in lieu of an answer, asserting that plaintiff has failed to state of a claim upon which relief can be granted. Stated differently, accepting as true all of the factual assertions made by plaintiff, her claims lack merit as a matter of law.

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A-0368-06T2

July 25, 2007