NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0865-17T1
FAHIM HUSSAIN,
Plaintiff-Appellant,
and
GENEVIEVE THOMAS,
Plaintiff,
v.
CITIZENS FINANCIAL GROUP, INC.,
Defendant-Respondent,
KEYSTONE ASSET MANAGEMENT, INC., CENTURY 21 WORDEN & GREEN, BRIAN GRAHAM, d/b/a CENTURY 21 WORDEN & GREEN, PETER MCGAVISK, d/b/a CENTURY 21 WORDEN 21 WORDEN & GREEN, and PROGRESSIVE MAINTENANCE, INC.,
Defendants. __________________________________ Argued January 16, 2019 – Decided February 8, 2019
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3379-15.
Fahim Hussain, appellant pro se.
Nicholas M. Gaunce argued the cause for respondent (Eckert Seamans Cherin & Mellott, LLC, attorney; Nicholas M. Gaunce, of counsel and on the brief).
PER CURIAM
Plaintiff Fahim Hussain appeals from an order granting summary
judgment dismissing the third amended complaint, which alleges causes of
action for negligent misrepresentation, violation of the Consumer Fraud Act
(CFA), N.J.S.A. 56:8-1 to -210, and negligence. Plaintiff also appeals from an
order denying his motion for reconsideration. 1 Based on our review of the
record,2 we affirm.
1 We do not address the order denying plaintiff's reconsideration motion because plaintiff does not offer any argument supporting its reversal. An issue not briefed on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008). 2 Pursuant to leave granted, the record on appeal was supplemented to include portions of plaintiff's May 25, 2017 deposition and exhibits from the deposition of defendant's employee Sherri Deal. A-0865-17T1 2 I.
We discern the following undisputed facts from the record before the
motion court and view the facts and all reasonable inferences therefrom in the
light most favorable to plaintiff, the non-moving party. Bauer v. Nesbitt, 198
N.J. 601, 605 n.1 (2009); R. 4:46-2(c). Defendant Citizens Financial Group,
Inc. acquired residential property in Upper Freehold Township through "a
foreclosure process" and subsequently offered it for sale. Prior to placing the
property on the market, defendant's inspector examined the property on
December 2, 2013, and noted in his report there were moisture stains on ceilings,
interior walls and in the kitchen, but he was "unable to determine the status of
the stains at the time of inspection."
Plaintiff first viewed the property on March 15, 2014, and was aware it
was a foreclosed property. Three weeks later, plaintiff's wife, Genevieve
Thomas, and her sister, Geraldine Thomas, (collectively "purchasers") signed a
contract to buy the property. The contract stated the property was being sold
"AS IS" and permitted the purchasers to perform a home inspection. The
contract included a rider, "Addendum A 'AS IS' Provision," stating:
Buyer is aware that Seller acquired the property which is the subject of this transaction by way of foreclosure deed in lieu and that Seller is selling and Buyer is purchasing the property in its present "AS IS"
A-0865-17T1 3 CONDITION WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE.
Buyer acknowledges for Buyer and Buyer's successors, heirs and assignees, that Buyer has been given a reasonable opportunity to inspect and investigate the property and all improvements thereon, either independently or through agents of Buyer's choosing, and that in purchasing the property Buyer is not relying on seller, or its agents, as to the condition or safety of the property and/or any improvements thereon including, but not necessarily limited to electrical, plumbing, heating, sewage, roof, air conditioning, if any, foundations, soils and geology, lot size, or suitability of the property and/or improvements for particular purposes, or that any appliances, if any, plumbing and/or utilities are in working order, and/or that the improvements are structurally sound and/or in compliance with any city, county, state and/or Federal statutes, codes or ordinances. Any reports, repairs, or work required by Buyer's Lender is to be the sole responsibility of the Buyer.
Seller does not warrant existing structure as to the habitability or suitability for occupancy. Buyer(s) assumes responsibility to check with appropriate planning authority for intended use and holds Seller and Broker harmless as to suitability for Buyer(s) intended use.
Buyer(s) further states that they are relying solely upon their own inspection of subject property and not upon any representation made to them by any person whomsoever, and is purchasing subject property in the condition in which it now is, without any obligation on the part of the Seller to make any changes, alterations, or repair thereto. Seller gives no warranties of fitness regarding such personal property that belongs to Seller which is transferred as a part of the purchase.
A-0865-17T1 4 The closing of this transaction shall constitute as an acknowledgment by the Buyer(s) that THE PREMISES WERE ACCEPTED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AND [IN] ITS PRESENT "AS IS" CONDITION BASED SOLELY ON BUYER'S INSPECTION.
The contract was reviewed by purchasers' counsel. Purchasers retained
an inspector to conduct a home inspection. The inspector's report identified
numerous issues with the condition of the property including: electrical outlets
not working; wall, ceiling and window water stains; damaged floors; a kitchen
sink leak; exposed electrical wires; double-tapped electrical breakers; non-
functioning shower heads; excessive furnace rust; and a cracked toilet. The
inspector recommended that purchasers follow up with a contractor for, among
other things, "further evaluation of [the] water source" of the leaks "and for
further repair."
Acting on purchasers' behalf, plaintiff sought a $50,000 price reduction
based on the issues identified in the home inspection report. Defendant rejected
the proposal, and plaintiff responded by requesting a $25,000 reduction.
Defendant rejected that proposal, terminated the contract and placed the
property back on the market.
Plaintiff subsequently directed purchasers' counsel to ask defendant to
reinstate the contract. Purchasers' counsel wrote to defendant's counsel
A-0865-17T1 5 requesting the reinstatement and stating that his "client [has] advised that she
wants to proceed with the purchase of the . . . property without a reduction in
purchase price and will waive the open inspection negotiation." Defendant
agreed.
Prior to the closing of title, Upper Freehold Township conducted an
inspection and required repairs for the issuance of a Certificate of Occupancy.
The Township required defendant to: repair of the kitchen faucet; install an
electric wire to the dishwasher in a covered junction box; install a kitchen fire
extinguisher; address a leak in the conservatory ceiling and repair damaged
sheetrock; place a hanging basement wire in a covered junction box; address a
paver tripping hazard on front steps; and have a licensed electrician certify that
all breakers and the sub-panel are properly installed.
Purchasers and defendant subsequently executed an "Addendum to
Contract of Sale," providing in pertinent part:
5. Seller agrees to perform all required [Certificate of Occupancy] repairs as listed on the inspection report conducted by Upper Freehold Township dated July 2, 2014. If any other conditions come up to obtain a final [Certificate of Occupancy] and the Seller does not agree to complete same, Buyer shall have option to cancel the Contract.
....
A-0865-17T1 6 7. Construction. The terms of the Contract of Sale, and any previous Addendums thereto, shall remain in full force and effect, except as they may conflict with the terms of this Addendum. In the event of such conflict, the terms of the Addendum shall control.
Defendant made repairs and the Township issued an August 21, 2014 Certificate
of Occupancy.
Prior to the closing, purchasers' attorney obtained a title search that
revealed, among other things, a May 29, 2002 deed of dedication and a plat plan
showing a forty-foot-wide roadway dedication of Sharon Station Road, which
abuts the rear of the property. The deed dedicated the road to Upper Freehold
Township "for use as a road and all lawful public purposes including . . . public
rights of way, installations and maintenance of the roadway."
By deed dated July 8, 2014, which was delivered on August 29, 2014,
defendant transferred title of the property to purchasers. Plaintiff and his wife,
purchaser Genevieve Thomas, subsequently moved into the residence. 3
3 The record does not establish that purchasers conveyed title to the property to plaintiff and his wife subsequent to August 29, 2014. At oral argument, plaintiff represented purchasers had conveyed title to him and his wife but he could not provide the conveyance date or cite to any evidence of the conveyance in the record. Plaintiff's standing was not raised as an issue before the motion court. Because we affirm the dismissal of the complaint on the merits, it is unnecessary to address plaintiff's standing to appeal the dismissal of a complaint alleging claims arising from a real estate transaction to which he was not a party and where the purchasers have not appealed the court's summary judgment order. A-0865-17T1 7 Purchasers subsequently were contacted by the County of Monmouth in 2015 in
connection with the installation of a drainage easement along the rear of the
property, adjacent to Sharon Station Road. Purchasers reached an agreement
with the County on compensation for the drainage easement and were paid
$6000 by the County.
Fourteen months after the closing, plaintiff and his wife filed this action.4
In the first count of their third amended complaint, they allege defendant
negligently misrepresented the condition of the property and thereby failed to
disclose defects in the condition of the property during the sale. In the second
count, they allege defendant violated the CFA by knowingly concealing defects
in the property that could not be repaired and by making ineffective repairs to
the property. The third count alleges defendant negligently misrepresented the
condition of the property during the sale.
4 The record on appeal does not contain the original complaint. In their briefs on appeal, the parties state that plaintiff and his wife filed the initial complaint on September 9, 2015, against multiple defendants. They voluntarily dismissed the complaint against defendant Progressive Maintenance, Inc. at the close of discovery. They resolved their claims against defendants Century 21 Worden & Green, Brian Graham, Peter McGavisk, and Keystone Asset Management, Inc. prior to filing the third amended complaint.
A-0865-17T1 8 Following discovery, defendant moved for summary judgment. During
oral argument, plaintiff's counsel argued defendant was not entitled to summary
judgment on the three causes of action asserted in the third amended complaint
because the evidence showed defendant misrepresented that it made the repairs
noted in the Township's request for repairs for the Certificate of Occupancy.
Plaintiff's counsel also argued the causes of action were supported by evidence
that defendant failed to disclose an April 4, 2014 letter from Monmouth County
that defendant received, which revealed plans for improvements to Sharon
Station Road. More particularly, plaintiff asserted the letter disclosed a road
improvement project that would result in an expansion of the road from forty
feet to eighty feet wide and therefore adversely affect the property's value.
After hearing argument, Judge Katie A. Gummer rendered a detailed and
comprehensive oral opinion addressing the record presented, finding the
undisputed material facts and concluding plaintiff presented insufficient
evidence supporting the three causes of action asserted in the third amended
complaint. Judge Gummer entered an order granting defendant's motion for
summary judgment and this appeal followed.
A-0865-17T1 9 II.
We review a grant of summary judgment de novo, determining whether
there are any genuine issues of material fact when the evidence is viewed in the
light most favorable to the non-moving party. Rowe v. Mazel Thirty, LLC, 209
N.J. 35, 38, 41 (2012). Provided there are no genuine issues of material fact, we
review "the legal conclusions undergirding the summary judgment motion itself
on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,
202 N.J. 369, 385 (2010). Summary judgment is appropriate when the evidence
"is so one-sided that one party must prevail as a matter of law." Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).
We briefly review the law applicable to each of the causes of action
asserted in the third amended complaint. As noted, counts one and three allege
negligence and generally assert that defendant negligently misrepresented the
condition of the property. Negligent misrepresentation "may exist when a party
negligently provides false information." Karu v. Feldman, 119 N.J. 135, 146
(1990). A "negligent misrepresentation constitutes '[a]n incorrect statement,
negligently made and justifiably relied on, [and] may be the basis for recovery
of damages for economic loss . . . sustained as a consequence of that reliance.'"
A-0865-17T1 10 McClellan v. Feit, 376 N.J. Super. 305, 317 (App. Div. 2005) (citation omitted).
A cause of action for negligent misrepresentation requires proof that: (1)
defendant negligently provided false information; (2) plaintiff was a reasonably
foreseeable recipient of that information; (3) plaintiff justifiably relied on the
information; and (4) the false statements were a proximate cause of plaintiff's
damages. Karu, 119 N.J. at 146-47.
The second count alleges a violation of the CFA. A person must commit
an "unlawful practice" to violate the CFA. Cox v. Sears Roebuck & Co., 138
N.J. 2, 17 (1994). There are three general categories of unlawful practices:
affirmative acts, knowing omissions, and regulation violations. Ibid.
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any . . . real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice[.]
[N.J.S.A. 56:8-2.]
A fact is material when the seller knows or should know it is important to the
particular buyer's decision or when such fact would be important to the decision
A-0865-17T1 11 of a reasonable buyer. Ji v. Palmer, 333 N.J. Super. 451, 462 (App. Div. 2000).
"A practice can be unlawful even if no person was in fact misled or deceived
thereby." Cox, 138 N.J. at 17.
If the alleged consumer fraud violation is an affirmative act, "intent is not
an essential element and the plaintiff need not prove that the defendant intended
to commit an unlawful act." Id. at 17-18. Where the alleged consumer fraud
violation is an omission, "the plaintiff must show that the defendant acted with
knowledge, and intent is an essential element of the fraud." Id. at 18. Failure
to disclose is a violation of the CFA only if "made knowingly with the intent to
deceive the purchasers." Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590,
602 (App. Div. 1990). Our Supreme Court has noted that "a seller of real estate
. . . would be liable for nondisclosure of on-site defective conditions if those
conditions were known to them and unknown and not readily observable by the
buyer." Strawn v. Canuso, 140 N.J. 43, 59 (1995).
Plaintiff first argues the court erred by dismissing the causes of action
because they were supported by evidence showing defendant failed to disclose
physical defects in the property. As he acknowledges in his brief, plaintiff failed
to make this argument before the motion court. We therefore decline to consider
the argument because it does not involve jurisdictional or public interest
A-0865-17T1 12 concerns. Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will
decline to consider questions or issues not properly presented to the trial court
when an opportunity for such a presentation is available 'unless the questions so
raised on appeal go to the jurisdiction of the trial court or concern matters of
great public interest.'" (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.
542, 548 (App. Div. 1959))).
Plaintiff also argues the court erred by dismissing his causes of action
founded on the claim defendant failed to disclose a material fact related to the
property. More particularly, plaintiff argues defendant received an April 4, 2014
letter from Monmouth County advising there was a road improvement project
that would affect the property, and defendant failed to disclose the letter to the
purchasers prior to closing. Plaintiff argues the project involves the expansion
of the road from forty to eighty feet, and the proximity of the expanded roadway
to the property will adversely affect the property's value.
We reject plaintiff's contention substantially for the reasons explained by
Judge Gummer in her reasoned oral decision. We add only that we also reject
the argument because it is not supported by competent evidence. See Hoffman
v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)
A-0865-17T1 13 ("Competent opposition [to a summary judgment motion] requires 'competent
evidential material' beyond mere 'speculation' and 'fanciful arguments.'"
(quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super.
556, 563 (App. Div. 2005))). At her deposition, defendant's representative
Sherri Deals denied any knowledge of receiving the letter, and testified she did
not find the letter in defendant's records and was unaware of any proposed
widening of the road in the rear of the property at any time prior to the closing.
Plaintiff argues defendant's receipt of the letter is confirmed by a certified
mail receipt addressed to defendant and signed by an unknown individual on
April 7, 2014. However, plaintiff's reliance on the receipt as proof of delivery
of the April 4, 2014 letter to defendant is unsupported by competent evidence.
The receipt is untethered to an affidavit or certification establishing that it is
authentic. See R. 1:6-6; see also N.J.R.E. 901; Wells Fargo Bank, N.A. v. Ford,
418 N.J. Super. 592, 600 (App. Div. 2011) (finding that a document annexed to
a brief is not authenticated without "an affidavit or certification based on
personal knowledge"). Moreover, even if the receipt is authentic, there is no
competent evidence linking the receipt to the April 4, 2014 letter or showing the
receipt was completed as an acknowledgment of receipt of the letter. See
Sullivan v. Port Auth. of N.Y. and N.J., 449 N.J. Super. 276, 279-80 (App. Div.
A-0865-17T1 14 2017) (explaining that "bare conclusions" lacking "support in affidavits" are
"insufficient to defeat [a] summary judgment motion"). Thus, the only
competent evidence concerning defendant's purported knowledge of the planned
2014 road expansion is Sherri Deals' testimony, which establishes defendant
did not receive the letter and was unaware of the planned expansion prior to
closing.
Plaintiff presented insufficient evidence to sustain his negligence and
CFA claims based on defendant's alleged failure to disclose the April 4, 2014
letter because there was no competent evidence defendant received the letter.
Plaintiff did not sustain his CFA claim because defendant could not "knowingly"
and "with the intent to deceive the purchasers" fail to disclose a letter it never
received. Chattin, 243 N.J. Super. at 602. And the evidence does not show
defendant negligently disclosed false information. To the contrary, the
undisputed evidence demonstrates defendant did not make any representations
concerning Sharon Station Road. We therefore find no basis in the competent
evidence to reverse the court's dismissal of the causes of action based on
A-0865-17T1 15 defendant's alleged failure to disclose either the April 4, 2014 letter or the
improvement plan for Sharon Station Road.5
Plaintiff last argues the court erred by granting defendant summary
judgment on the asserted causes of action based on defendant's alleged
misrepresentations concerning the repairs required by the Township for the
Certificate of Occupancy and the alleged making of defective repairs. Plaintiff 's
argument is without merit sufficient to warrant discussion in a written opinion,
R. 2:11-3(e)(1)(E). We affirm Judge Gummer's dismissal of the claim
substantially for the reasons stated in her oral opinion.
Affirmed.
5 We observe that purchasers obtained a $6000 payment from Monmouth County for an easement on the property associated with the improvements to Sharon Station Road.
A-0865-17T1 16