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Burke v. Sea Point Realtors

June 18, 2010

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



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2010

Before Judges Carchman and Ashrafi.

Following an earlier, successful appeal reinstating their lawsuit, Burke v. Sea Point Realtors, 400 N.J. Super. 398 (App. Div. 2008), plaintiffs presented their evidence to a jury on claims of consumer fraud and tortious interference with a prospective economic advantage. They alleged they lost anticipated profits when their high bid to purchase a house under the supervision of the Chancery Division of the Superior Court, Probate Part, was rejected in favor of the bid of defendant realtors, who were also the listing agent on the property. At the conclusion of plaintiffs' evidence, the Law Division dismissed their claims under Rule 4:37-2(b), reasoning that plaintiffs had not produced admissible evidence of their alleged damages. Plaintiffs now appeal, and we affirm.

Our previous opinion recited some of the relevant facts:

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 [defendant] Sea Point [Realtors] 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 [defendants Thomas and Patricia Meyer].

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. . . . [T]he 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.

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 Probate judge's approval of the sale of the property to the Meyers was conclusive. [Burke, supra, 400 N.J. Super. at 400-01.]

By our earlier opinion, we reversed the grant of summary judgment dismissing all of plaintiffs' claims.*fn1 We concluded the Probate court's approval of the sale was not binding on plaintiffs in this case because they were not given notice and were not parties to the Probate proceedings. Id. at 408. Referring to the absence of disclosure in the Probate court regarding the Meyers' "self-dealing," we also concluded that the decision of that court "may have rested on misinformation." Id. at 405, 408. We remanded plaintiffs' claims for trial in the Law Division. Id. at 409.

After remand, the guardian settled with plaintiffs, and Nancy Burke withdrew as a plaintiff. Joseph and Timothy Burke proceeded to trial before a jury against Sea Point and the Meyers.

In their case-in-chief, plaintiffs presented evidence that they sought to buy the property because its listed price of $235,000 was favorable for its neighborhood, and they intended to occupy the house for some time and then resell it for a profit. They made an offer of $241,900, which was the highest of five bids, but they later learned that their offer had not been accepted and ...


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