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Burke v. Sea Point Realtors

May 30, 2008

JOSEPH BURKE AND TIMOTHY BURKE, PLAINTIFFS-APPELLANTS, AND NANCY BURKE, PLAINTIFF,
v.
SEA POINT REALTORS, THOMAS MEYER, PATRICIA MEYER AND DZINTARS ABELITE (BOTH INDIVIDUALLY AND IN HIS CAPACITY AS GUARDIAN OF ALFREDS NIKMANIS, AN INCAPACITATED PERSON), DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-928-06.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 31, 2008

Before Judges Collester, C.S. Fisher and C.L. Miniman.

This case was triggered by a guardian's decision to retain defendant Sea Point Realty to market real property owned by the guardian's ward. Without notice to plaintiffs or other disappointed offerors, the guardian obtained the Probate judge's approval of a conveyance to defendants Thomas and Patricia Meyer without clearly revealing that the Meyers were the principals of Sea Point. Based on this and defendants' alleged attempts to discourage buyers during the marketing process, plaintiffs filed this action for damages. We conclude that plaintiffs' claims were not precluded by the proceedings in the guardianship action and, with one exception, reverse the summary judgment entered in defendants' favor.

I.

A. The Proceedings in The Probate Part

Alfreds Nikmanis was the owner of real property in Brick Township. In light of his deteriorating physical and mental condition, his friend of many years, defendant Dzintars Abelite commenced an action, pursuant to N.J.S.A. 3B:13-1 to -31 and R. 4:86-1 to -6, for a declaration that Nikmanis was incapacitated and unable to manage his affairs. On May 19, 2005, a judgment was entered that appointed Abelite as the guardian of Nikmanis's person and property.

Abelite (the guardian) thereafter concluded that it was in Nikmanis's best interests to sell the Brick Township property and engaged Sea Point as his listing agent. Sea Point received a number of offers, and the guardian thereafter filed an action in the Probate Part, pursuant to R. 4:94-1 to -7, seeking approval to sell the property to the Meyers.

In his verified complaint, the guardian alleged that the property was purchased by Nikmanis in 1999 for $113,000 and was unencumbered. He asserted that the Meyers' offer was the highest and urged its approval. As more fully explored later, the guardian's papers did not make clear the existence of a relationship between the Meyers and Sea Point. And, because of the limited class of persons given notice of the application, the application went unopposed and was apparently not further scrutinized by the Probate judge, who granted the guardian's application without explanation.*fn1

B. The Proceedings in the Law Division

Upon learning of the Probate judge's determination, plaintiffs commenced this Law Division action -- against the guardian, the Meyers and Sea Point -- seeking damages based upon what they claim, among other things, was a fraudulent scheme to discourage buyers and to make the property available to the Meyers at the lowest possible price. Plaintiffs asserted: that the guardian's submission to the Probate judge was inadequate and failed to disclose the Meyers-Sea Point relationship; that the guardian's failure to give notice to them and the other disappointed offerors of the probate proceedings precluded deeper scrutiny of the guardian's submission; and that the Meyers, in their role as listing agent, discouraged potential purchasers by indicating that the property had many problems as a way of keeping down the amount of any bids received.

By way of separate motions, all defendants obtained summary judgment. The Law Division judge essentially based his rulings on the fact that plaintiffs never entered into an enforceable contract with the guardian, and that plaintiffs had no standing to be heard in the Probate Part, or, stated another way, that the ...


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