MID ATLANTIC CAPITAL L.L.C v. MICHAEL K. OXLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2061-09T2

MID ATLANTIC CAPITAL, L.L.C.,

Plaintiff-Appellant,

vs.

MICHAEL K. OXLEY and OXLEY APPRAISAL

SERVICES, L.L.C.,

Defendants-Respondents.

________________________________________________

November 1, 2010

Argued: October 6, 2010 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-190-08.

Michael M. Mulligan argued the cause for appellant.

Tracy L. Burnley argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Burnley, on the brief).

PER CURIAM

Plaintiff Mid Atlantic Capital, L.L.C. (Mid Atlantic), a defunct mortgage broker, filed a complaint against defendants Michael Oxley and Oxley Appraisal Services, L.L.C. (Oxley) alleging negligence in the performance of two real estate appraisals. Mid Atlantic appeals from an order granting Oxley's motion for summary judgment. We affirm.

In its complaint, Mid Atlantic alleged that Oxley agreed to appraise two parcels of real estate in Atlantic County. Mid Atlantic further alleged that Oxley appraised "a wrong, incorrect or otherwise non-related property," that it paid Oxley the agreed sum, that Oxley appraised the property for more than its fair market value, and that it relied to its detriment on this appraisal to support a mortgage application. In his answer, Oxley denied the allegations.

Discovery revealed that Oxley received a request from Joseph Lomax, a former branch manager of the Mid Atlantic Absecon office, to appraise as vacant land two adjacent parcels on Route 54 in Williamstown. Oxley did so and submitted his appraisals to Lomax. Filed copies of the appraisals retained by Oxley report a value of $66,000 for each parcel. Mid Atlantic paid $300 to Oxley for each appraisal. Mid Atlantic produced two appraisal reports for the same properties reporting values of $193,500 for one parcel and $183,000 for the other parcel. These appraisal reports described improved lots rather than vacant land and bore pictures of houses on each.

Discovery also revealed that the appraisal reports with the higher values included maps of each property generated in June 2005, four months before Lomax requested Oxley to appraise each parcel as vacant land. In addition, Lomax received the majority of the proceeds from the sales of the appraised properties.

In support of its motion for summary judgment, Oxley presented an expert report that stated the reports in possession of Mid Atlantic were not original appraisal reports signed by Oxley. The expert reported that he examined the original documents signed by Oxley and noted the signatures on the original documents were all executed in blue ink. He opined that the signatures on the documents in the Mid Atlantic files are duplicates of the other and were machine made. In short, he reported "it is my opinion within a reasonable degree of scientific certainty that the signatures were made by a printer and are not 'original', ink signed signatures." In addition, Oxley denied producing the reports of improved properties with higher values used by Mid Atlantic to support two mortgage loans.

In opposition to Oxley's motion, Mid Atlantic submitted the certification of Robert Wayne, a member of Mid Atlantic and one of the principal executive officers of the firm at the time Lomax requested the appraisals and Oxley submitted his reports. He stated that both reports appeared to be originals and the firm relied on that status. He opined that both appraisal reports were electronically signed. Yet in Wayne's deposition taken in July 2009, four months before his certification, Wayne stated that he was not qualified to opine whether a signature was an original signature. He further reported that Mid Atlantic brokered the two mortgage loans to Indymac Bank (Indymac), and Indymac notified Oxley that it had placed him on its excluded list.

In her oral opinion, Judge Anne McDonnell found that both parties had the opportunity to engage in discovery, Oxley presented competent evidence to refute Mid Atlantic's allegations, including an expert report, but Mid Atlantic had not countered the expert report. In response to Oxley's competent evidence refuting Mid Atlantic's allegations of negligence, Mid Atlantic simply relied on the allegations in its complaint. Therefore, Judge McDonnell granted summary judgment in favor of Oxley.

The standard for evaluating a motion for summary judgment is well known. A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we must apply the standard articulated in Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Id. at 540.]

Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536. However, a court "may pick and choose inferences from the evidence to the extent that 'a miscarriage of justice under the law' is not created." Ibid.; R. 4:49-1(a). To prevail on a summary judgment motion, defendants must show that plaintiff's claim was so deficient as to warrant dismissal of its action. Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997). This court applies the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Applying this standard to the facts of this case, we affirm. The party opposing a motion for summary judgment cannot simply rest on its pleadings, Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999); yet that is exactly what Mid Atlantic has done. Mid Atlantic alleged that Oxley performed a negligent appraisal of two properties. While a party, alleging that an appraiser submitted an appraisal that did not accurately reflect the improvements on the property, may not be required to submit an expert report, see Sommers v. McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996) (expert not required when layman's common knowledge permits a finding that a duty of care has been breached), it certainly must support its allegation that the reports in its file are originals with an expert report when it is confronted with a report to the contrary. Here, the only evidence submitted by Mid Atlantic to refute the expert report submitted by Oxley was a statement by a principal of Mid Atlantic in a certification prepared months after a deposition in which he stated he was not qualified to render an opinion. The motion judge was permitted to disregard Wayne's certification because it did not provide a reasonable explanation for the difference, it presents an opinion patently and sharply at odds with his earlier deposition, and his prior testimony did not require clarification. Shelcusky v. Garjulio, 172 N.J. 185, 200-02 (2002). Moreover, a notice from a mortgage lender that it barred Oxley as an appraiser is hardly evidence in support of the Mid Atlantic claim, particularly when Indymac permitted Oxley to contest its findings, and he had pursued that opportunity.

Our review of the summary judgment record leads us to the same conclusion as the motion judge--that Mid Atlantic simply failed to demonstrate a genuine issue of material fact. Indeed, there is no competent evidence by which a rational trier-of-fact could find that Oxley negligently performed the appraisals Mid Atlantic retained him to perform.