On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4062-05.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
In A-1452-07, plaintiff appeals from an order entered by the trial court on October 19, 2007, which quashed subpoenas issued by plaintiff to certain non-parties. In A-1975-07, plaintiff appeals from orders entered on August 2, 2007 and November 8, 2007, which granted defendants' motions for summary judgment. We consolidate and address both appeals in this opinion. For the reasons that follow, we affirm in A-1452-07; and affirm in part, reverse in part and remand for further proceedings in A-1975-07.
Plaintiff was the owner of property in Guttenberg, New Jersey, located at 6813-6817 Polk Street. After plaintiff's husband died, she decided to sell the property, which consisted of a single-story building with industrial space, a two-story building with two residential units, and a small, single-story building that was formerly used as an office.
In December 2001, plaintiff retained Unicasa Frontier Realty Corp. ("Unicasa") to list the property for sale.*fn1
Unicasa's agent, Antonio Gracia ("Gracia"), presented plaintiff with a listing agreement on December 6, 2001, which she signed. Gracia said that plaintiff sat next to him while he typed all of the information on the agreement and signed the agreement in his office. Plaintiff executed a dual agency agreement thereby acknowledging that Gracia could also act as a dual agent, which permitted him to also represent potential buyers.
Gracia performed a comparable market analysis ("CMA") to determine the value of the property. Gracia listed the property on the Hudson County Multiple Listing Service ("MLS") for $425,000, which he said was the amount that plaintiff wanted for her property, even though Gracia's CMA indicated that the property was worth less.
On January 12, 2002, Mario F. Echevarria ("Echevarria"), offered $350,000 for the property. Previously, Gracia had received two offers for the property, one in the amount of about $310,000 or $315,000, and the other for less than $300,000.
Plaintiff rejected Echevarria's offer and Echevarria increased the offer to $410,000. Plaintiff accepted the offer in writing. Echevarria's offer indicated that he would deposit five percent of the purchase price upon acceptance and another five percent upon the signing of a contract.
Later in January 2002, after plaintiff informed Gracia that she did not have an attorney, Gracia said that he recommended three attorneys, one of which was Sandra Londono ("Londono"). Londono contacted plaintiff and she agreed to represent plaintiff. Londono did not, however, have plaintiff execute a written retainer agreement.
On March 7, 2002, plaintiff signed a copy of the contract prepared by Londono. However, plaintiff alleged that, when she signed the contract, Echevarria had already signed the agreement. Plaintiff also claimed that Londono told her that Echevarria had signed the contract on March 6, 2002, that the contract was fully executed and that Londono had both deposits in an escrow account. She asserted that Londono had informed her that the contract provided that the closing would occur within sixty days and would be null and void if the closing did not occur within that time.
Immediately after signing the contract, plaintiff informed Gracia that there was a fully-executed contract for the sale of the property to Echevarria and that Londono had received Echevarria's deposit. Based on that conversation, and without undertaking an inquiry to confirm the information provided by plaintiff, Gracia filled out a Deposit Accepted by Owner form ("DABO"), which he gave to his supervisor Maira Fernandez ("Fernandez") for signature and submission to the Hudson County MLS. Thereafter, a banner was placed on the "For Sale" sign on plaintiff's property indicating that it was "Under Contract."
The record reflects that on March 7, 2002, Londono provided copies of the contract to Echevarria's attorney, Wilfredo Chavez ("Chavez"). Chavez replied to Londono on March 15, 2002. He advised that the contract was acceptable, subject to agreement upon additional terms that would be included in a rider to the contract, which he had prepared and enclosed for Londono's review. On March 19, 2002, Londono suggested some changes to the rider. Further correspondence was exchanged between Londono and Chavez concerning the rider, specifically with respect to plaintiff's desire to remain in the property after the closing.
A revised rider was prepared in May 2002. Plaintiff alleged that, at the beginning of May 2002, Londono informed her that she had to sign a new contract because the earlier agreement had expired. It appears, however, that plaintiff had been asked to sign the rider to the agreement.
Plaintiff signed that document on May 14, 2002, and Echevarria signed it on May 20, 2002. The rider stated that the closing must occur within forty-five days. According to plaintiff, Londono told her that if Echevarria did not close within forty-five days, the contract would be cancelled and plaintiff would not have to sell.
On June 14, 2002, Londono provided Chavez with two, fully-executed copies of the contract. Londono said that she had received a deposit of ten percent of the purchase price by May 30, 2002. Londono maintained, however, that the agreements were not finalized until June 14, 2002, and plaintiff could have cancelled the transaction at any time prior to that date.
On June 28, 2002, plaintiff called Londono. She said that the forty-five-day period in the contract had expired. Plaintiff assumed that the forty-five days ran from the date that she signed the rider, which was May 14, 2002, but Londono told her that the forty-five-day period ran from June 14, 2002, when the contract was finalized.
Plaintiff again called Londono on August 3, 2002, and told her that she wanted to cancel the agreement. According to plaintiff, Londono advised her that, before the contract could be cancelled, she had to send Echevarria a "time is of the essence" letter. Plaintiff insists that she instructed Londono not to send the letter; however, Londono maintains that plaintiff's son, Michael Stoecker, authorized her to send the letter.
On August 5, 2002, Londono wrote to Chavez and set a "time is of the essence" closing date of August 15, 2002; however, plaintiff refused to close on that date. Echevarria then sent plaintiff a "time is of the essence" letter, setting the closing for September 17, 2002. Plaintiff failed to appear.
Echevarria and Echevarria Industries, Inc. thereupon commenced an action for specific performance of the contract in the Chancery Division.*fn2 J. Alvaro Alonso ("Alonso") represented Echevarria in that lawsuit. Plaintiff filed a counterclaim demanding that the contract be declared null and void. That matter was tried in July 2003, and on July 25, 2003, the court rendered a decision from the bench.
The court found that, although plaintiff may have signed a contract on March 7, 2002, there was no meeting of the minds at that time because the terms of the rider were still being negotiated. The court determined that plaintiff and Echevarria agreed to the final terms of the contract in mid-June 2002.
The court further found that, despite the provision of the agreement requiring a closing within forty-five days, time did not become of the essence until Londono sent her letter to Chavez on August 5, 2002. However, plaintiff was not ready, willing and able to close on August 15, 2002, the date that Londono set for the closing.
The court further noted that, thereafter, Echevarria sent plaintiff a "time is of the essence" letter which scheduled the closing for September 17, 2002. The court found that Echevarria was ready, willing and able to close on that date but plaintiff was not.
The court concluded that there was a valid agreement between plaintiff and Echevarria and the contract should be specifically enforced. The court entered judgment for Echevarria, which directed that the closing occur on August 15, 2003. Plaintiff did not appeal from the judgment of the Chancery Division, and she transferred title to Echevarria pursuant to the terms of the agreement, as ordered by the court.
On August 10, 2005, plaintiff commenced this action in the Law Division, naming as defendants Echevarria, Gracia, Unicasa, Fernandez, Chavez, Londono and J. Alvaro Alonso (who was improperly pled as "Alvarro Alonso"). Plaintiff alleged that all defendants had violated the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961-1968 (RICO), and were liable for common law fraud. Plaintiff asserted a legal malpractice claim against Londono. She also asserted a claim for professional malpractice and a claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA), against Unicasa and Gracia. Subsequently, stipulations were entered dismissing the claims against Chavez and Alonso.
On September 4, 2007, plaintiff served subpoenas duces tecum upon the New Jersey Real Estate Commission ("NJREC"), the Hudson County MLS, the Guttenberg Planning Board, and the Guttenberg Zoning Board. Unicasa, Gracia and Fernandez filed a motion to quash the subpoenas. The trial court considered the motion on October 19, 2007. The court rendered a decision from the bench and entered an order quashing the subpoenas.
On July 2, 2007, Londono filed a motion to dismiss plaintiff's legal malpractice claim for failing to comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27. The court heard oral argument on the motion on July 30, 2007. On August 2, 2007, the court rendered a bench decision and entered an order granting Londono's motion with prejudice.
On or about September 24, 2007, Unicasa, Gracia, Fernandez, Echevarria and Londono filed motions for summary judgment on the remaining claims in the case. On September 25, 2007, plaintiff filed a motion for summary judgment on the claims asserted against Unicasa, Gracia and Fernandez. The court considered the motions on November 1, 2007. On November 8, 2007, the court entered orders granting defendants' motions and denying plaintiff's motion. These appeals followed.
We turn first to plaintiff's contention that the trial court erred by dismissing her claims against Londono on the ground that plaintiff had not complied with the ...