NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4068-23
MOSHE SUGAR,
Plaintiff-Respondent,
v.
ZHI SHAN WANG,
Defendant-Appellant,
and
BLOCK 19902, LOT 7, a/k/a 102 VAN HORN ST., JERSEY CITY, NEW JERSEY, and HUIJIN WANG,
Defendants. ____________________________
Submitted June 5, 2025 – Decided July 10, 2025
Before Judges Natali and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000089-21. The Law Office of Savio D. Figaro, LLC, attorney for the appellant (Savio D. Figaro, on the briefs).
The Law Offices of John J. Novak, PC, attorney for respondent (John J. Novak, on the brief).
PER CURIAM
Defendant Zhi Shan Wang appeals from a June 14, 2024 Chancery
Division order, which granted plaintiff Moshe Sugar's request for specific
performance of a real estate sales contract, executed by Zhi's daughter, Huijin
Wang, conveying Zhi's property in Jersey City.1 Zhi also appeals the court's
August 2, 2024 order denying his motion for reconsideration. The court
concluded Huijin acted with apparent authority in effectuating the sale of the
property.
We reverse the court's June 14, 2024 order to the extent the court
concluded Huijin acted with apparent authority, and remand for further factual
findings and legal conclusions consistent with Rule 1:7-4 as to the applicability
of the doctrine of actual authority. In light of our decision to remand the matter
1 Because Zhi and Huijin share the same surname, we use their first names for ease of reference, intending no disrespect. Further, the record contains various spellings of "Huijin." For consistency, we employ the spelling used in Zhi's brief and the case caption. A-4068-23 2 for additional factual findings and legal conclusions, we need not address the
propriety of the court's order denying reconsideration.
Zhi, who primarily lives in China, purchased the property in 2017 as an
investment. He returned to China shortly after the purchase and remained there
until the underlying trial. Zhi's wife and Huijin live in the United States.
Plaintiff, a real estate developer who does business in Jersey City, was
contacted by his broker about the property. Between January 15 and 18, 2021,
plaintiff and Huijin electronically executed a "Statewide New Jersey Realtors
Standard Form of Real Estate Sales Contract" conveying the property to "LLC
TBD," a designation typically used by plaintiff when purchasing real estate held
by a to-be-created entity, for the total sale price of $403,000. After the contract
was signed, plaintiff sent the required deposit and the transaction proceeded
through attorney review. Plaintiff testified both he and Huijin were represented
by counsel throughout the transaction.
Prior to closing, plaintiff's broker informed him Huijin demanded more
money for the property. Plaintiff informed his broker he did not want to pay
more for the property and, if he backed out of the deal, he would require Huijin
to repay the costs he already expended, roughly $45,000 in architectural fees,
utility shutoffs, engineering costs, and environmental permits. Plaintiff testified
A-4068-23 3 Huijin refused to pay for his out-of-pocket expenses and specifically stated, "no,
I'm not paying anything. My father wants more money. If you want to agree to
give me more money, I will get my father to sign off."
Plaintiff requested an in-person meeting at his broker's office in Hoboken.
According to plaintiff, at the meeting, Huijin again stated she wanted more
money for the property, which plaintiff rejected and noted there was already a
contract in place. Plaintiff testified Huijin responded "take me to court. My
father lives in China. I don't care. . . . [T]he [c]ourt will for sure tell me that I
can win the property." Plaintiff further testified he believed Huijin was the
property owner prior to the meeting at the broker's office.
The transaction failed to close, and plaintiff thereafter filed a three-count
complaint against Zhi seeking specific performance, damages, attorney's fees,
litigation costs, expenses, and also requested a lis pendens against the property.
After the court dismissed the matter without prejudice for lack of prosecution
under Rule 1:13-7, the court denied both Zhi's motion to discharge the lis
pendens and plaintiff's cross-motion to restore the complaint to the active trial
list. Once defense counsel was authorized to accept service on behalf of Zhi,
the court granted plaintiff's motion to restore the complaint and denied Zhi's
additional motion to discharge the lis pendens.
A-4068-23 4 The court conducted a three-day bench trial where plaintiff and Zhi were
the only witnesses. Zhi moved to dismiss, which the court denied and explained
it was "very much persuaded that there [was], at the very least, apparent
authority, if not actual authority here." At the conclusion of the proofs, the court
issued a June 14, 2024 order and accompanying written decision, which granted
plaintiff's request for specific performance.
With respect to Zhi's testimony, the court overruled his counsel's objection
that Zhi should not be compelled to testify in plaintiff's case-in-chief under
N.J.S.A. 2A:81-6 because the matter was "somewhat similar to a forfeiture
case." The court overruled counsel's objection and explained there is "no rule
or case[]law [interpreting] the court rules or the evidence rules" that would
prohibit plaintiff from calling Zhi as a witness.
The court next stated it had "never encountered a more hostile witness
than" Zhi. It explained, when defense counsel objected to the use of leading
questions, that plaintiff's counsel "ha[d] every right . . . to . . . ask leading
questions. And he's forced to do so because of the apparent unwillingness
of . . . [Zhi] to answer the questions. [Zhi] not only doesn't answer them, he
obfuscates and then argues with the attorney."
A-4068-23 5 The court also made separate credibility findings adverse to Zhi.
Specifically, it found Zhi "contradicted himself regarding the delegation of
duties for managing the . . . property" because "he denied ever discussing the
desire to sell this property with [Huijin] or his thoughts on a fair market value ,"
but later testified "he did discuss th[ose] issues with his wife and daughter[,] but
not before 2021." He also stated, "he did discuss [the property's affairs] with
[Huijin] but not until 2023," which the court determined was inconsistent with
his earlier statements.
Further, the court found Zhi's description of his relationship with Huijin
"highly suspect" and that "[i]t defie[d] belief that a father could speak to his
daughter [four to five] times per week and never discuss the sole piece of real
estate he owns in the United States." Additionally, because Zhi stated "he still
want[ed] to sell the property but th[ought] it should fetch a higher price," which
was consistent with Huijin's position at the in-person meeting, the court
concluded "it is clear . . . [Zhi] thought the property was worth more than the
contract price, expressed as much to his daughter who, acting in his stead,
attempted to re-open negotiations," and that the "only logical conclusion is that
[Huijin] did so with the authority and blessing of her father, the titled owner."
Thus, the court held Zhi's "testimony shows a pattern of delegating authority
A-4068-23 6 over this property to his wife and daughter then claiming ignorance to their
actions so as to disavow the effects thereof if need be."
Next, with respect to Huijin, the court concluded her "conspicuous
absence from the trial . . . support[ed the] . . . conclusion that she . . . act[ed] as
her father's agent and on his behalf in an effort to strike a better deal." And,
despite knowledge of her address and ability to subpoena her, the court
explained her absence "raise[d] a reasonable inference on the court's part that
her testimony would have been deleterious to his defense."
In light of the foregoing findings, the court determined Zhi "is bound by
the acts of Huij[i]n . . . as his agent in the contract for sale," the contract is valid
and enforceable, and there is no "credible evidence in the record to support a
valid reason for Zhi's non-performance." With respect to agency, the court
found Huijin acted with apparent authority on her father's behalf because of his
absence which left his wife and/or daughter to handle the property's affairs.
Finally, the court concluded "[i]t was not unreasonable for [plaintiff] to rely on
the authority of Huij[i]n . . . to act on her father's behalf based on her conduct
during the formation of the contract, relationship with the listing/selling broker,
attorney review[,] and post-attorney review negotiations."
A-4068-23 7 The court also issued an August 2, 2024 order which denied Zhi's motion
for reconsideration. In the court's written statement of reasons, it reiterated its
adverse credibility findings with respect to Zhi and again found he delegated
responsibilities associated with the property to both his wife and daughter . The
court stated Zhi's assertion that he never spoke with Huijin about the property
despite frequent communication "defie[d] all credulity" and was "not worthy of
belief." Finally, the court explained that Huijin acted with apparent authority
and continued to handle all aspects of the sale and attempted renegotiations.
Before us, Zhi maintains the court erred in finding Huijin had apparent
authority to sell the property because the record does not contain sufficient
evidence to make such a finding. Zhi argues he did not "convey nor intended to
convey the impression of authority" to plaintiff and only testified he left the
property's management to his wife, not his daughter. Relying on our decision in
Lobiondo v. O'Callaghan, 357 N.J. Super. 488 (App. Div. 2003), Zhi contends
his conduct did not lead plaintiff to believe that Huijin had authority to sell the
property because Zhi had no prior contact with plaintiff, plaintiff believed Huijin
was the owner of the property until the in-person meeting, and that plaintiff
relied on the broker and his attorney to his detriment.
A-4068-23 8 Zhi also contests the court's award of specific performance. On this point,
he reprises his argument he did not sign the contract, and it is therefore
unenforceable. He further maintains plaintiff breached the contract by failing
to timely provide the down payment as required by the contract, which violated
the time of the essence clause. With respect to any waiver of the time of the
essence clause, Zhi contends plaintiff failed to present any evidence to show
how he prevented the timely closing. Moreover, Zhi asserts "[i]t is
unreasonable, harsh[,] and unjust to compel [him] to forfeit the property"
because plaintiff is experienced in real estate transactions, was represented by
an attorney, and was thus in a "better position to protect his interest."
Zhi argues the court erred when it allowed plaintiff, over his counsel's
objection, to call him as a witness because specific performance is a type of
forfeiture, which requires the application of N.J.S.A. 2A:81-6. He claims that
error caused an unjust result because the court relied heavily on his testimony
in deciding the case, particularly his credibility. If the court properly applied
N.J.S.A. 2A:81-6, his testimony would not have occurred, and the court would
not have found plaintiff "established a prima facie case" on plaintiff's testimony
alone.
A-4068-23 9 In reviewing a judgment issued after a bench trial, "we give deference to
the trial court that heard the witnesses, sifted the competing evidence, and made
reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015)
(citing Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84
(1974)). We do not disturb a trial court's factual findings or legal conclusions
unless they are so manifestly unsupported by the competent, relevant evidence
that affirmance would constitute an injustice. Allstate Ins. Co. v. Northfield
Med. Ctr., P.C., 228 N.J. 596, 619 (2017). Particular deference is owed to the
trial court's assessment of witness credibility because the court was able to
observe the witnesses as they testified. Balducci v. Cige, 240 N.J. 574, 594-95
(2020).
We review a decision on a motion for reconsideration of a final judgment
or order pursuant to Rule 4:49-2 for an abuse of discretion. Branch v. Cream-
O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v. Westover, 241
N.J. 289, 301 (2020)). Such motions are "within the sound discretion of the
[c]ourt, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).
A-4068-23 10 An agency relationship arises when one party consents to have another act
on its behalf, with the principal controlling and directing the acts of the agent.
Sears Mortg. Corp. v. Rose, 134 N.J. 326, 337 (1993). The general rule is that
"an agent may only bind [the] principal for such acts that 'are within [their]
actual or apparent authority.'" N.J. Laws.' Fund for Client Prot. v. Stewart Title
Guar. Co., 203 N.J. 208, 220 (2010) (quoting Carlson v. Hannah, 6 N.J. 202,
212 (1951)).
"Apparent authority imposes liability on the principal not as a result of an
actual contractual relationship, but because the principal's actions have misled a
third-party into believing that a relationship of authority in fact exists." Mercer
v. Weyerhaeuser Co., 324 N.J. Super. 290, 317 (App. Div. 1999) (citing
Blaisdell Lumber Co. v. Horton, 242 N.J. Super. 98, 102-03 (App. Div. 1990)).
The doctrine of apparent authority "focuses on the reasonable expectations of
third parties with whom an agent deals." Restatement (Third) of Agency § 7.08
cmt. b (Am. L. Inst. 2006).
"An agent's success in misleading the third party as to the existence of
actual authority does not in itself make the principal accountable." Id. at § 2.03
cmt. c. Thus, "apparent authority arises 'when a third party reasonably believes
the actor has authority to act on behalf of the principal and that belief is traceable
A-4068-23 11 to the principal's manifestations.'" Bridgewater-Raritan Educ. Ass'n v. Bd. of
Educ. of Bridgewater-Raritan Sch. Dist., Somerset Cnty., 221 N.J. 349, 363
(2015) (quoting Restatement (Third) of Agency: Apparent Authority § 2.03).
In contrast, "[a]ctual authority occurs 'when, at the time of taking action
that has legal consequences for the principal, the agent reasonably believes, in
accordance with the principal's manifestations to the agent, that the principal
wishes the agent so to act.'" N.J. Laws.' Fund for Client Prot., 203 N.J. at 220
(quoting Restatement (Third) of Agency: Actual Authority § 2.01). "Actual
authority (express or implied) may 'be created by written or spoken words or
other conduct of the principal which, reasonably interpreted, causes the agent to
believe that the principal desires [them] so to act on the principal's account.'"
Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005) (quoting
Restatement (Second) of Agency: Creation of Authority § 26 (Am. L. Inst.
1958)).
Based on our review of the record and the aforementioned legal principles,
we conclude the court's finding that Huijin acted with apparent authority when
selling the property was unsupported by the record. As noted, apparent authority
requires that "the principal's actions . . . misled a third-party into believing . . . a
relationship of authority in fact exists," Mercer, 324 N.J. Super. at 317.
A-4068-23 12 Therefore, plaintiff's belief Huijin had authority to sell the property must have
been based on Zhi's actions.
The record reflects plaintiff did not know Zhi existed or owned the
property until after the contract was signed and, instead showed plaintiff
believed Huijin owned the property. Additionally, the record lacks competent
proof Zhi made any representations or took any actions to which plaintiff was
aware regarding Huijin's purported authority to sell the property. Thus, because
an apparent authority finding here would require, at the very least, that plaintiff
was aware of Zhi, and some showing that Zhi led plaintiff to believe Huijin was
authorized to sell the property, an apparent authority finding was improper.
Our analysis, however, is not complete. As noted, an agent's actions can
bind the principal where either apparent or actual authority exists. N.J. Laws.'
Fund for Client Prot., 203 N.J. at 220 (quoting Carlson, 6 N.J. at 212). Here, it
appears certain of the court's factual findings support a finding of actual
authority, as it acknowledged when denying Zhi's motion to dismiss. Unlike
apparent authority, actual authority in this case would be based on Zhi's
representations to Huijin, and her reasonable belief, based on those
representations, that she had the authority to bind her father to the contract of
A-4068-23 13 sale, and that Zhi wanted her to do so. See ibid.; Jennings, 381 N.J. Super. at
231.
By way of example only, the court found Zhi tasked both his wife and
Huijin with managing the property's affairs while he was in China and that it
"defie[d] belief" Zhi and Huijin never discussed the property during their
numerous weekly calls. Also, according to plaintiff's credible testimony, Huijin
twice referenced her father's involvement in the sale of the property; first when
she demanded more money for the property, and again when she threatened to
resort to judicial intervention when plaintiff refused to pay more. And, Zhi
himself indicated he wanted to sell the property.
As noted, however, the court's legal findings were primarily based on a
finding of apparent authority. The record would benefit from more specific
factual and legal findings and remand for the court to make findings consistent
with Rule 1:7-4 as to whether Huijin had actual authority to enter the real estate
contract. We decline to exercise original jurisdiction on this point and conclude
the trial court should address the issue in the first instance and provide the
parties with an opportunity to brief and be heard on the matter, if necessary. See
Price v. Himeji, LLC, 214 N.J. 263, 294 (2013).
A-4068-23 14 Next, we need not address at length Zhi's arguments with respect to the
court's award of specific performance as the propriety of that remedy is
contingent upon the court's actual authority findings on remand. Marioni v. 94
Broadway, Inc., 374 N.J. Super. 588, 598 (App. Div. 2005) ("In general, to
establish a right to the remedy of specific performance, a plaintiff must
demonstrate that the contract in question is valid and enforceable at law.");
N.J.S.A. 25:1-13 ("An agreement to transfer an interest in real estate . . . shall
not be enforceable unless . . . the identity of the transferor and transferee are
established in a writing signed by or on behalf of the party against whom
enforcement is sought."). We note only that a specific performance remedy
would be appropriate in the event Huijin is deemed to have acted with actual
authority when signing the contract.
Further, we find Zhi's breach-based arguments meritless as plaintiff
testified "the down payment was delivered to the seller's attorney" right after
attorney review, and Zhi fails to cite any record support to the contrary. See
Nolan v. Control Data Corp., 243 N.J. Super. 420, 438 (App. Div. 1990) ("[T]he
burden of establishing a breach of contract rests with the party who asserts the
breach."). We further see no reason why enforcing the contract through specific
A-4068-23 15 performance, assuming appropriate authority exists, would be unreasonable,
harsh, or unjust.
Finally, Zhi's argument that he was improperly called as a witness in
plaintiff's case in chief under N.J.S.A. 2A:81-6 is similarly unpersuasive. That
statute states:
[i]n all civil actions in any court of record a party shall be sworn and shall give evidence therein when called by the adverse party, but no party thereto shall be compelled to be sworn or give evidence in any action brought to recover a penalty or to enforce a forfeiture.
[N.J.S.A. 2A:81-6.]
We are unpersuaded by Zhi's reliance on the Law Division's decision in
Chase Manhattan Mortgage Corp. v. Hunt, 364 N.J. Super. 587 (Law Div. 2003)
as we are convinced neither N.J.S.A. 2A:81-6 nor that case apply to the facts
and circumstances before us. In Chase, the court interpreted N.J.S.A. 2A:81-6
and relied on a dictionary definition of forfeiture in concluding an eviction
action constituted a forfeiture under the statute. Id. at 589, 593. Here, the matter
does not involve the loss of property as described in Chase or in N.J.S.A. 2A:81-
6, as it is not an "action brought to recover a penalty or enforce a forfeiture," but
pertains to enforcement of a contract to sell property and the court's award of
specific performance. Plaintiff properly called Zhi as a witness in his case-in-
A-4068-23 16 chief and the court correctly permitted the testimony in accordance with the
Rules of Evidence.
In sum, we reverse the court's June 14, 2024 order which awarded specific
performance based on a finding that Huijin acted with apparent authority.
Nothing in our opinion should be construed as suggesting our view on the
outcome of the remanded proceedings.
Reversed in part and remanded in part. We do not retain jurisdiction.
A-4068-23 17