THEODORE et al. v. WOODMONT PROPERTIES, L.L.C., WOODMONT COURT AT MONTVILLE, L.L.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1683-06T31683-06T3

THEODORE and FRANCES VAGIAS,

Plaintiffs-Appellants,

v.

WOODMONT PROPERTIES, L.L.C.,

WOODMONT COURT AT MONTVILLE, L.L.C.,

Defendants,

and

WEICHERT CO. (formerly WEICHERT

REALTORS),

Defendant-Respondent.

__________________________________________

 

Submitted August 7, 2007 - Decided

Before Judges S.L. Reisner and Lyons.

On appeal from the Superior Court of

New Jersey, Law Division, Morris County,

L-2245-02.

Braff, Harris & Sukoneck, attorneys

for appellants (Gloria B. Cherry, on

the brief).

Laddey, Clark & Ryan, attorneys for respondent (Thomas N. Ryan and

Lawrence J. Supp, on the brief).

PER CURIAM

Plaintiffs Theodore and Frances Vagias appeal from a trial court order dated October 20, 2006, denying their motion for a new trial following an unfavorable jury verdict. We affirm.

This is plaintiffs' second appeal. On their first appeal, we reversed a trial court order granting summary judgment dismissing plaintiff's Consumer Fraud Act claim against defendant Weichert Realtors for allegedly misrepresenting the location of a house plaintiffs wished to purchase. Vagias v. Woodmont Props., 384 N.J. Super. 129 (App. Div. 2006). The essence of plaintiffs' complaint was that they specifically told their Weichert realtor that they wanted to live in the Montville section of Montville Township, rather than in either of the other two sections of the Township, that she mistakenly assured them that a particular house was located in their desired section when in fact it was located in the Towaco section, and that they bought the house in November 2001 based on her mistaken representation. They contended that the house was worth less money because it was located in the Towaco section of the Township, and that their son was unable to go to a particular elementary school that was only available to residents of the Montville section. In reversing the dismissal of the complaint we held that plaintiffs' evidence, if believed by a jury, would establish a violation of the Act; we noted, however, that we expressed no view as to whether a jury would find their evidence credible.

At trial, both plaintiffs testified (with considerable repetition and emphasis) as to their great desire to live in the Montville section of the Township, their reliance on the Weichert realtor's confirmation that the house they were considering buying was in fact in the Montville section, and their distress at learning some months after closing that the house was in a different section and that their son would not be able to attend the desired elementary school. Mrs. Vagias testified that they were willing to pay approximately $730,000 for the home, which was more than they originally planned to pay for a house, because of its apparently desirable location, advertised as the Woodmont Court development "in Montville."

Plaintiffs both admitted that the house was located on environmentally contaminated land, a problem unrelated to any issue they had with Weichert and which they claimed they did not discover until after they had filed this lawsuit; at the time this case was being tried, plaintiffs were pursuing the environmental issue in arbitration against the developer of the property.

Plaintiffs attempted to establish that Weichert's misrepresentation had caused them an ascertainable loss, by presenting testimony from a real estate appraiser, Matthew Nolan. Nolan testified that in 2003, he was asked to determine whether there was a price difference between homes located in Towaco versus homes with the same essential characteristics located in Montville. Based on a comparison of sales of homes similar to plaintiffs' house in the two sections, Nolan concluded that "the Montville properties actually sold for about ten percent higher than the Towaco properties." According to Nolan, the Towaco homes in his comparison study sold for an average net adjusted sales price of $807,000 as compared with $890,000 for the Montville houses.

Nolan also testified that plaintiffs paid ten percent more for their house than they should have, based on the hypothetical assumption that "if the home were sold as though it were in Montville, it sold for a ten percent premium versus Towaco." However, he admitted that he had not actually "calculated the fair market value of this property when the plaintiffs purchased it." When asked to explain why he had not done this calculation he testified that it was not within the scope of the opinion plaintiffs had asked him to render, that being "to just determine if there is a difference between similar homes in Towaco versus similar homes in Montville."

He also did not calculate the appreciation rate for the values of homes in the two sections. However, on cross-examination, he admitted that he agreed with defendant's expert's opinion that homes in Towaco and Montville "probably appreciated at approximately the same rate." He further admitted that his actual assignment as an expert was to estimate the market value of the plaintiffs' real property, but that he did not do that. He specifically conceded he did not appraise the property and he made no determination as to whether the house was worth $731,000 on the date plaintiffs bought it.

According to the Weichert realtor, Gabrielle Dingle, plaintiffs never told her that they only wanted to live in the Montville section of the Township. She testified that they never discussed the fact that there were different sections of Montville Township and, according to Dingle, she herself did not know that Montville was a separate section of the Township. She testified that plaintiffs were interested in new construction and wanted to look at Woodmont because it was a new housing development. She specifically contradicted plaintiffs' testimony that they had asked her to research the location to be sure that it was in the Montville section. She also denied telling plaintiffs that the house was in the Montville section or that their children would be able to attend a particular school. However, she also testified that when Frances Vagias told her, after the closing, that the house was in "Towaco," Dingle "was horrified because it was important to Frances to have a prestigious home . . . a prestigious address." According to Dingle, she then learned that Towaco and Montville were both part of Montville Township and she sent Frances a note clarifying that "you do live in Montville. Towaco is a section of Montville."

According to Woodmont's selling agent, Ed Tomback, plaintiffs never asked him whether the development was in the Montville section, and he provided them with a handout "which stated that it was in the Towaco Post Office."

Defendant presented testimony from a real estate appraiser, Robert Belon. He was asked to offer an opinion as to whether the value of plaintiffs' house would be "adversely impacted" by the fact that it had a Towaco mailing address rather than a Montville mailing address. He testified that based on a comparison of home sales in Towaco and Montville, the rates of appreciation of the Towaco homes were very slightly higher than the rates of appreciation of the homes in Montville. He specifically opined that a home in Towaco purchased for $731,000 would appreciate at "essentially the same rate" as a house purchased in the Montville section for the same price.

Belon also opined that plaintiffs "paid market value for their home when they purchased it in November, 2001." He reached that conclusion by comparing the price of plaintiffs' home with the prices of other homes on the same street in Towaco which were sold in 2002 for between $803,328 and $950,729. He admitted, however, that he did not consider important details concerning those homes, such as their square footage or any upgrades to the houses. Nor did he perform a formal appraisal of plaintiffs' house.

In closing arguments, plaintiffs' counsel made clear to the jury that plaintiffs' claim of an ascertainable loss was based on Nolan's testimony that they overpaid for the house.

In answering question one of the verdict sheet, the jury found that Dingle did make a material misrepresentation to plaintiffs concerning the location of the property and/or the school their children would attend if they bought the house. However, in answering question two on the verdict sheet, the jury determined that the misrepresentation was not the proximate cause of any ascertainable loss to plaintiffs.

I

On this appeal, plaintiffs present the following points for our consideration:

POINT I: THE DECISION BELOW DENYING PLAINTIFFS' MOTION FOR A NEW TRIAL WAS ERRONEOUS. THE JURY FOUND THAT THE CONSUMER FRAUD ACT WAS VIOLATED BY THE WEICHERT AFFIRMATIVE MISREPRESENTATIONS. PLAINTIFFS' ATTORNEYS FEES AND COSTS WERE THUS PAYABLE. PROXIMATE CAUSE WAS ESTABLISHED BY THE UNCONTRADICTED EVIDENCE AND THE JURY SHOULD HAVE CONTINUED ITS DELIBERATIONS TO ASSESS DAMAGES.

POINT II: THE JURY'S RESPONSE TO QUESTION #2 WAS INCONSISTENT WITH ITS RESPONSE TO QUESTION #1. SPECULATION AS TO WHAT THE JURY WAS DECIDING IN ANSWERING QUESTION #2 IS IMPROPER AND THE VERDICT SHOULD BE SET ASIDE.

In point one, plaintiffs argue that the verdict was against the weight of the evidence. We find no merit in this contention. Although the jury found that Dingle made a misrepresentation concerning the property's location or the school plaintiffs' children would attend, it does not necessarily follow that the jury was compelled to conclude that the misrepresentation caused plaintiffs an ascertainable loss. Plaintiffs staked their case concerning ascertainable loss on the testimony of their real estate expert Nolan. However, based on our review of the entire record, we conclude that a reasonable jury may have found his testimony unpersuasive. Nolan did not perform an appraisal of the house plaintiffs purchased, and his testimony that they overpaid for the house was essentially a net opinion. In any event, the jury was not obligated to accept his opinion, and it is neither our function nor the trial court's function to second-guess the jury's credibility determinations. See State v. Haines, 20 N.J. 438, 446 (1956) ("Credibility is truly an issue for the jury.").

Moreover, the jury was not obligated to accept plaintiffs' testimony that they bought the house primarily because they believed it was located in the Montville section. While the jury may not have found Dingle to be a credible witness, they may have been equally unimpressed with plaintiffs' testimony. Reasonable jurors may have concluded that plaintiffs knew the house's location or that, if they did not know, they would nonetheless have purchased the house regardless of which section of the Township it was located in.

We likewise find no merit in plaintiffs' second point. To the extent plaintiffs infer a problem with the jury questions, they have waived that issue. Plaintiffs' counsel did not object to the jury charge or the jury interrogatories at trial and may not attack the jury questions on appeal absent plain error. See R. 1:7-2; R. 2:10-2. Having reviewed the record we find no basis to conclude that the verdict represented a miscarriage of justice such that it should be set aside. See Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969); R. 2:10-1.

Affirmed.

 

On cross-examination, Nolan admitted that if plaintiffs bought a similar house in Montville they would have paid ten percent more for it. On re-direct, he opined that because the house was marketed as being located in Montville plaintiffs paid ten percent more for the house than they should have, although he had not appraised the house.

Plaintiffs have not briefed the argument, mentioned only in the first point heading, concerning their right to counsel fees; accordingly the issue is abandoned. Moreover, since they did not raise the issue in their new trial motion, it would not be considered on appeal in any event. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

(continued)

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A-1683-06T3

August 16, 2007