On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
King, Brody and Humphreys. The opinion of the court was delivered by King, P.J.A.D.
[267 NJSuper Page 26] We granted leave to appeal in this case, R. 2:2-3(b); R. 2:2-4, to examine the ruling of the Law Division Judge which granted absolute judicial immunity from claims by third-parties to an attorney designated by a Family Part Judge to sell a home owned by litigants in a marital dissolution proceeding. The purchasers of the property sued the attorney claiming that he knowingly misrepresented or concealed certain structural defects from them. We
conclude that the attorney was not entitled to the shield of traditional absolute judicial immunity afforded to common-law Judges in this suit for damages brought by allegedly wronged purchasers of real estate. We reverse the grant of summary judgment on judicial immunity grounds in the attorney's favor.
This appeal stems from a divorce action filed in the Family Part, Chancery Division in Bergen County in 1989 captioned Patricia L. Reynolds v. Donald O. Reynolds, Docket No. FM-15767-89. On December 22, 1989 a Family Part Judge appointed defendant Joel J. Reinfeld, Esquire, an attorney, "to forthwith sign the listing agreement and all necessary papers to sell the marital home at 84 Deerhaven Road, Mahway, New Jersey, at the best price possible and under the best listing terms." The order also provided that Reinfeld was "immune from liability from either party because of his appointment by this court." The marital property subject of the equitable distribution of the martial estate was a two-story "Georgian-colonial" home built during the 1970's.
Attorney Reinfeld's certification in support of his motion for summary judgment in November 1992 discloses the factual background relevant to his claim of absolute immunity in the suit by the purchasing plaintiffs, the Starrs, for damages. Reinfeld listed the property for sale with an agent in January 1990 at $539,500, after he asked three real estate agents to survey the property. In April 1990 he reduced the price to $499,500. On August 13, 1990 he listed the property with a different agent and eventually further reduced the price to $469,500. In March 1991 he received an offer of $350,000. He rejected this offer. Reinfeld then received permission by the Judge to have the house appraised. On April 8, 1991 the appraised value was $375,000.
During July 1991 Reinfeld received two offers: one from Timothy Tuttle, an attorney, and one from the plaintiffs, Victor and Heidi Starr. Reinfeld accepted Tuttle's offer to purchase the home for $355,000. On July 31 Tuttle sent Reinfeld a letter
modifying the contract of sale. The letter also stated that Tuttle would have the house inspected on August 2, 1991. Reinfeld replied that he told Tuttle that the sale was "as is" since the agreed price was $20,000 below the appraised value.
On August 1, 1991 Reinfeld sent the Family Part Judge who appointed him to sell the house a certification in support of a motion to approve the sale of the house to Tuttle for $355,000. Reinfeld said that although he did not think that court approval was necessary, he filed the motion because he thought that the Reynolds, the divorcing owners, might be unsatisfied with the price. The certification on this application for approval contains the only reference in the record to Reinfeld's manner of compensation. This certification of August 1, 1991 stated:
I also respectfully request that this Court approve the payment of my attorney's fees off the top of the sale proceeds after payment of appropriate liens and real estate commissions etc. I will present a final bill to be approved by the Court prior to closing. Additionally, my usual and customary fee for a real estate sale is $650.00 for processing all papers and attending closing.
Reinfeld's counsel could not further enlighten us at oral argument on the extent of his anticipated compensation, whether hourly or otherwise, in addition to his $650 closing fee. The record is silent on the point.
On August 2, 1991 Tuttle called Reinfeld and told him that an inspection of the house revealed structural defects and he was canceling the contract. Apparently, no written report of this inspection was forwarded to Reinfeld. In his brief Reinfeld states: "At that time, [Tuttle] may or may not have told Reinfeld that such repairs involved a beam of the house. Reinfeld really did not care about the nature of the [necessary] repairs as there were no signed riders and Tuttle could have canceled the contract for any reason." On the ...