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Lombardi v. Masso

January 28, 2009


On appeal from Superior Court of New Jersey, Law Division, Burlington County, No. L-110-04.

Per curiam.


Argued November 5, 2008

Before Judges Wefing, Parker and Yannotti.

Plaintiff filed suit seeking damages in connection with a contract she signed to purchase a home at 121 Nokomis Trail in Medford Lakes. The original contract, executed in April 2003, listed defendants Christopher Masso and John Torrence as the sellers, defendant Prudential Fox & Roach Realtors as the listing broker, and defendant Jennifer Lynch as the agent with Prudential Fox & Roach who handled this transaction.*fn1 In May 2003, the parties executed an addendum to the contract substituting defendant MTG Properties, LLC ("MTG") for Masso and Torrence as the seller and listing the work to be performed on the property prior to closing. MTG was a limited liability company formed by Masso, Torrence and Meg Githens (wife of defendant James Githens) for the purpose of purchasing, rehabilitating and selling real properties. Meg Githens made no capital contribution to MTG; instead, MTG retained defendant James Githens to perform the contracting work on its various projects. Mr. Githens operated a contracting business through defendant Tara Construction Services, Inc.*fn2

By the time of the closing in July 2003, however, Githens had not completed the repairs and renovations to the property. Plaintiff, nonetheless, decided to go ahead with the closing and $10,000 of the purchase price was placed in escrow with Fidelity Title Abstract Co. pending completion of the work listed on an agreed-upon punch list. The real estate agent who represented plaintiff in connection with this transaction, Brenda Richmond, affiliated with Weichert Realtors, advised her against proceeding with the closing in this fashion. Indeed, Ms. Richmond prepared a letter, which plaintiff signed, memorializing that she had advised plaintiff not to close the transaction, had advised plaintiff that she should seek the advice of an attorney and that plaintiff had nonetheless decided to proceed in the face of that advice.

The escrow agreement provided that the work set forth on the punch list was to be completed by August 1, 2003, and that the escrow agent could release the funds when it was notified by plaintiff and MTG that the work had been completed. The work was not completed by that date, however.

In early August, Githens approached plaintiff and told her that Masso was not paying him and that he required the money held in escrow in order to complete the scheduled work. Githens gave plaintiff a check for ten thousand dollars drawn on a Tara Construction account to hold as security. On August 4, 2003, plaintiff, without consulting anyone, and without questioning why Githens needed the money if Tara could issue a check for ten thousand dollars, signed a letter authorizing Fidelity to release the ten thousand dollars. Githens then took the letter, already signed by plaintiff, to Masso, who signed on behalf of MTG. Masso was wholly unaware when he signed the letter that Githens had in fact not completed the promised work. He did not learn of this until plaintiff told him some thirty days later, when the work still had not been done. Githens took the money held in escrow but performed no further work. When plaintiff attempted to cash the check Githens had given her, the bank informed her there were no funds in the account.

Plaintiff filed her complaint in January 2004, naming as defendants Masso, Torrence, MTG, Prudential Fox and its agent Lynch, and Githens. All defendants with the exception of Githens, against whom a default was eventually entered, filed an answer and discovery proceeded.

In December 2006, after the completion of discovery, the trial court entertained summary judgment motions brought by defendants.*fn3 Defendants submitted various items in support of their motions, including plaintiff's deposition in which she admitted she had never met defendant Torrence and had never received any communications from him and that she only met defendant Masso at the July 16 closing. When asked at her deposition what misrepresentations Masso had made to her, plaintiff replied that he had promised her at the closing that he "would take care of everything."

The trial court issued an extensive written opinion, setting forth its reasons for concluding that defendants were entitled to summary judgment. It found that Githens was not the agent for any of the defendants and that plaintiff did not have a cause of action for breach of contract against any of the moving defendants. It found that plaintiff had not presented any basis to support individual liability on the part of Torrence and Masso and that there were no facts which would support a cause of action for fraud against any of the moving defendants. Further, the trial court ruled that plaintiff's claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184, had to be dismissed as a matter of law.

Plaintiff filed a motion for reconsideration, which the trial court denied on August 3, 2007, again issuing a detailed statement of reasons. The trial court found no reason to revisit the analysis it had previously set forth. It specifically noted that plaintiff had supplied as part of her motion for reconsideration deposition testimony of defendants Masso and Githens but that this testimony could not serve as a basis for reconsideration because it had been available to plaintiff at the time of the summary judgment motions.

A proof hearing with respect to plaintiff's claims against defendant Githens was coincidentally scheduled for August 3 before the trial court. Defendants and their attorneys did not attend the proof hearing, there being no reason for them to do so in light of the fact that the trial court had indicated at the conclusion of the argument on plaintiff's motion for reconsideration that the motion was denied.

At the August 3 proof hearing, plaintiff testified in support of her claim for damages, as did her expert, who catalogued the work remaining to be done. The proof hearing resumed on August 6, at which point plaintiff's counsel read into the record certain portions of the deposition of defendant Githens. At the conclusion of that proof hearing, without plaintiff having formally sought any ...

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