("Agreed."). "`Sun succeeded to Griffin's rights and obligations
under the Griffin Agreement.'" Stewart Title, 58 F. Supp.2d at
362 (quoting Greenlands's Statement ¶ 39).
Under the Agreement of Sale, "[t]he Closing of the purchase and
sale of the Property [was to] take place at 10:00 a.m. on July 3,
1997." Id. (quoting Agreement of Sale ¶ 6). The Agreement also
provided that: "`[t]ime is of the essence.'" Id. (quoting
Agreement of Sale ¶ 6).
Early in February of 1997, Arthur Sklar, Esq., approached
Stewart Title, on behalf of Sun, to request a title commitment
for the property. Hayes Cert., Ex. 4-A (Application for
Commitment for Title Insurance, dated Feb. 7, 1997). On February
14, 1997, Sun received two commitments for title insurance from
Stewart Title, one for the main parcel and one for the strip.
See Hayes Cert., Exs. 6 (main parcel), 9 (strip). Unlike the
title insurance policy that Stewart Title issued to Greenlands,
this set of commitments noted that Boardwalk, and not Greenlands,
held title to the strip. See id. In his deposition, Likens
testified that this change resulted from a conference call
between Sklar, Gillingham, and Likens, in which Sklar described
how "he felt that title should have been" represented. See id.,
Ex. 5 (Likens Dep. Tr. at 87). Nothing "Sklar said convince[d
Likens] that, in fact, Boardwalk had superior title to
Greenlands," rather, it was Sklar's mere conclusory statement
that motivated TCJ, and, in turn, Stewart Title to state that
Greenlands did not hold title to the strip. See id. (Likens
Dep. Tr. at 91).
In the subsequent months, TCJ further searched title to the
strip. See id., Ex. 10 (collected documents regarding title to
the strip, from March and April of 1997). As part of this
investigation, TCJ discovered that Boardwalk had dissolved on
March 10, 1970. See id. Then, on June 17, 1997, after TCJ's
more detailed investigation of the title to the strip, Stewart
Title issued a commitment for title insurance that included both
the main parcel and the strip, which noted that the quitclaim
deed from Woolworth to Greenlands did, in fact, convey the strip
to Greenlands. See id., Ex. 12. This commitment, however,
required "[p]roduction of a certified copy of the Resolution of
the Board of Directors of Boardwalk Realty Company, its
successors and/or assigns authorizing the sale and conveyance of
the premises in question TO BE AGREED UPON." Id. Additionally,
this commitment noted: "We find Fee Simple Title to [the strip]
vested in Boardwalk Realty Company. . . . The said Boardwalk
Realty Company failed to include [the strip] in the subsequent
Deed of conveyance." Id.
Sklar, counsel for Sun, however, "was dissatisfied with the
form of" the June 17, 1997, commitment for title insurance.
Id., Ex. 11 (Gillingham Dep. Tr. at 112). Stewart Title changed
the commitment for title insurance to conform with "[w]hatever
[Sklar's] requests were." Id. Indeed, Stewart Title was willing
to do "whatever [Sklar] wanted . . . [w]ithin the realm of title
insurance." Id. (Gillingham Dep. Tr. at 112-13). As a result,
on June 26, 1997, Stewart Title sent Sklar, by facsimile, a
revised commitment for title,*fn11 with the following note:
"Please review & let me know if you feel this is more
consistent." Id., Ex. 13. The June 26, 1997, version of the
commitment for title insurance covered both parcels, however, it
contained an exception for an "[o]utstanding estate and interest
of Boardwalk Realty Company, its successors and/or assigns, in
and to [the strip] of [1315 Boardwalk]." Id.
On June 26, 1997, the same day that William Gillingham sent
Sklar the third version of the commitment for title insurance,
and exactly one week before the closing date on the purchase
agreement between Greenlands and Sun, Sklar sent a letter to
Title commitment # 31113278 dated June 4, 1997 issued
by [TCJ] (the "Title Commitment") indicates that
title to [the strip] . . . is vested in Boardwalk
Realty Company. A copy of the Title Commitment is
enclosed. As [the strip] appears to be a part of Lot
161, Block 20 on the official Tax Map of Atlantic
City, title to the Property does not appear to be
marketable or insurable based on the Title
Commitment. This is to advise you Sun is unwilling to
accept less than good, marketable and insurable title
to the Property.
Alderoty Cert., Ex. C (Letter from Arthur Sklar, Esq., to
Greenlands Realty, L.L.C., dated June 26, 1997). With only a week
to cure the alleged defect, Greenlands had little recourse. On
the July 3, 1997, closing date, Sun refused to close. See
Verification of William W. Shultz, Esq., in Opposition to
Counterclaim Defendant Sun International of North America, Inc.'s
Motion to Dismiss, filed June 19, 1998, Ex. 1 (Letter from Arthur
Sklar, Esq., to William Shultz, Esq., dated July 3, 1997,
explaining Sun's reason for its refusal to close).
"By letter dated July 3, 1997, Greenlands submitted to Stewart
[Title] a notice of claim under the Title Policy." Counterclaim ¶
54. In response, on August 27, 1997, Stewart Title instituted an
action in the New Jersey Superior Court, to quiet title to the
strip and obtain a confirmatory deed to the strip. See Stewart
Title Guaranty Co. v. Greenlands Realty, L.L.C., 58 F. Supp.2d 360,
364 (D.N.J. 1999). "The New Jersey Superior Court, Chancery
Division, determined that Boardwalk's failure to include a metes
and bounds description of the strip in the 1970 deed to Colsey
and Mahon was a mistake and, as a result, the court appointed
Nancy Gemmel, Esq., `as a commissioner in accordance with [N.J.
Stat. Ann. §] 46:7-1 to execute [a] Confirmatory Deed.'" Id.
(quoting Judgment, filed Oct. 15, 1997, in Greenlands Realty,
L.L.C. v. Boardwalk Realty Co., Civil Action No. ATL-C-135-97E,
New Jersey Superior Court, Atlantic County, Chancery Division).
"On November 18, 1997, Ms. Gemmel signed a confirmatory deed to
the strip on behalf of Greenlands." Id. "After obtaining the
confirmatory deed, Stewart Title then filed this action, seeking
a declaratory judgment that it was not obligated to provide
coverage for any loss that Greenlands might have sustained as a
result of Sun's termination of the Agreement of Sale." Id.
In my Opinion and Order of May 12, 1999, see id., I concluded
that Greenlands possessed marketable title, because "Boardwalk
intended to convey title to the strip and its failure to include
a metes and bounds description of the strip in the deed was a
scrivener's error" and, therefore, "none of Boardwalk's
successors-in-interest can assert a viable claim, nor are they
likely to attempt to do so." Id. at *10. Now I must consider
the motion for summary judgment of the Title Companies, which
addresses Count II of the Complaint and Counts III through X of
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);
see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Reitz v. County of Bucks,
125 F.3d 139, 143 (3d Cir. 1997); Hersh v. Allen Prod. Co.,
789 F.2d 230, 232 (3d Cir. 1986). In deciding whether there is a
disputed issue of material fact, the Court must view the
facts and draw all reasonable inferences in favor of the
non-moving party. See, e.g., Pennsylvania Coal Ass'n v.
Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v.
Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).
Under the rule, a movant must be awarded summary judgment on
all properly supported issues identified in its motion, except
those for which the non-moving party has provided evidence to
show that a question of material fact remains. Once the moving
party has properly supported its showing of no triable issue of
fact and of an entitlement to judgment as a matter of law, "its
opponent must do more than simply show that there is some
metaphysical doubt as to material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) ("By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion . . .; the
requirement is that there be no genuine issue of material
fact.") (emphasis in original).
What the non-moving party must do is "go beyond the pleadings
and by [its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'" Celotex
Corp., 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P.
56(e)); see also Lujan v. National Wildlife Fed., 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("The object of [Rule
56(e)] is not to replace conclusory allegations of the First
Amended Complaint . . . with conclusory allegations of an
affidavit."); Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992) ("[T]o raise a genuine issue of
material fact . . . the [non-moving party] need not match, item
for item, each piece of evidence proffered by the movant," but
rather must exceed the "`mere scintilla' threshold."), cert.
denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). If
the non-moving party fails to oppose the motion by written
objection, memorandum, affidavits and other evidence, the Court
"will accept as true all material facts set forth by the moving
party with appropriate record support." Anchorage Assocs. v.
Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990)
(quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)).
Even where the non-moving party has failed to establish a
triable issue of fact, summary judgment will not be granted
unless "appropriate." Fed.R.Civ.P. 56(e); see Anchorage
Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of
Civil Procedure requires that the case be evaluated on its
merits, with summary judgment being granted for the movant only
if it entitled to a judgment as a matter of law. See Anchorage
Assocs., 922 F.2d at 175.
A. Contract Claims
1. Count V of the Counterclaim: Breach of Contract Claim
Asserted Against Stewart Title
The title insurance policy issued by Stewart Title to
Greenlands provides protection against:
1. Title to the estate or interest described in
Schedule A being vested other than as stated
2. Any defect in or lien or encumbrance on the title;