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Felumero v. AHB Development Corp.


September 2, 2010


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4753-07.

Per curiam.


Argued May 19, 2010

Before Judges Fisher and Espinosa.

Plaintiff appeals from the denial of her motion for summary judgment and an order that granted summary judgment to defendants AHB Development Corporation (AHB) and Howard C. Birdsall, dismissing her claim under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -195 (CFA). We affirm.

In July 2003, defendant AHB sought approval from the Planning Board of the Borough of South Belmar (now Lake Como) for a minor subdivision that resulted in the creation of two residential lots. A result of the planned subdivision is that a house on the lot ultimately purchased by plaintiff would not comply with the Borough's side yard setback requirements. The Board found that "The applicant is demolishing part of the dwelling unit to make the property more in compliance with the zoning ordinances of the Borough" and conditioned its approval of the subdivision on "a dividing line being at least 3.1 feet from the dwelling unit. . . . In addition, a portion of the dwelling is to be removed to eliminate the need for any further variances but there will be an addition on the rear of the dwelling unit." AHB and Birdsall, its corporate agent, admittedly never removed a portion of the existing dwelling.

A survey of the property was attached to the deed that was recorded for the subdivision and noted that "a portion of dwelling 1.35' to be removed to satisfy 3.0' sideyard setback." The lot was conveyed to defendant Frank Young, who later conveyed the property to defendant William Young. The recorded deed continued to have as an attachment a copy of the survey that indicated that 1.35' of the property was "to be removed to satisfy the 3.0' sideyard setback."

Although the portion of the dwelling referred to was not removed, William Young obtained a certificate of occupancy from the Borough and also obtained a building permit from the Borough allowing him to put a new roof on the home.

Plaintiff Nerina Felumero purchased the property from William Young in February 2006 for $435,000. The deed referenced the prior transfers. Plaintiff admitted that she had never met with or received any kind of communication from Birdsall or any other representative of AHB. Plaintiff admitted that her closing file contained a survey of the property and believed that she used the same survey that had been prepared for the transfer to William Young. However, when she was shown the survey at her deposition, plaintiff denied having seen the survey before.

In 2006, the Borough refused to issue a certificate of occupancy to Felumero because the "portion of the dwelling, which was supposed to have been demolished by the original owner as required by the Planning Board resolution, had in fact not been removed which created a side yard variance that had specifically not been granted." Plaintiff received an estimate of $35,000 to remove this portion of the structure and repair the damage that it would cause.

Plaintiff initiated this litigation in October 2007.*fn2

Plaintiff filed a motion for summary judgment as to liability on her consumer fraud and equitable fraud claims and withdrew her equitable fraud claim against AHB in her reply brief. The trial court denied plaintiff's motion in September 2008. AHB and Birdsall later filed a motion for summary judgment*fn3 to dismiss the complaint with prejudice that was granted by the trial court.

In this appeal, plaintiff argues that the trial court erred in denying her motion for summary judgment. She also alleges error in the court's decision to grant summary judgment to defendants AHB and Birdsall but limits her argument to the dismissal of her CFA claim. After carefully reviewing the record, briefs and arguments of counsel, we are satisfied that these arguments lack merit.

When reviewing a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006).

In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

N.J.S.A. 56:8-2 provides in pertinent part that any: deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice . . . .

We first address plaintiff's challenge to the denial of her summary judgment motion. Plaintiff acknowledges that neither AHB nor Birdsall made any misrepresentations directly to her. Her CFA claim rests upon an allegation that defendants made the requisite misrepresentation to the Planning Board in conjunction with the subdivision approval. The alleged misrepresentation is then, about what defendants' intention was at the time the matter was pending before the Planning Board, not a misrepresentation as to an existing fact. Under these circumstances, we are satisfied that her argument that the court erred in denying her motion for summary judgment lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We next turn to plaintiff's argument that the trial court erred in granting summary judgment to the defendants.

To recover under the CFA, a plaintiff must suffer an "ascertainable loss . . . as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . ." N.J.S.A. 56:8-19 (emphasis added). In cases in which the alleged misrepresentation was made to a prior purchaser and not to the plaintiff asserting the CFA claim, we have held that there was a fatal lack of proof of a causal connection between the misrepresentation and the alleged loss. See Dean v. Barrett Homes, Inc., 406 N.J. Super. 453, 462 (App. Div.), certif. granted, 200 N.J. 207 (2009); Marrone v. Greer & Polman Const., Inc., 405 N.J. Super. 288, 295-297 (App. Div. 2009); Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 641 (App. Div.), certif. denied, 107 N.J. 148 (1987).

Here, plaintiff admitted that defendants made no misrepresentations directly to her. There was also no chain of representations from AHB or Birdsall to plaintiff as was present in Perth Amboy Iron Works, Inc. v. American Home Assurance Co., 226 N.J. Super. 200 (App. Div. 1988), aff'd o.b., 118 N.J. 249 (1990). Consistent with our prior holdings, we are satisfied that these undisputed facts demonstrated a lack of causation that was fatal to her CFA claim as a matter of law.


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