On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3239-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Simonelli.
Plaintiff Housing Authority of the City of Bayonne (BHA) appeals from a final judgment dated September 1, 2010, which entered a judgment of no cause of action following a jury verdict and dismissed the complaint with prejudice. We affirm.
We derive the following facts from the trial record. In 1992, defendant Adib Hanna*fn1 loaned $5000 to his brother, Moshir Hanna, to purchase property located on Kennedy Boulevard in Bayonne (the property). Following the purchase, defendant and his family resided in one apartment located on the property. Moshir placed defendant's name on the deed to the property in order to ensure repayment of the loan. After Moshir repaid defendant in full, on January 1, 2000, they executed a "contract of sale," whereby defendant agreed to transfer his interest in the property to Moshir. On July 31, 2000, Moshir met with his attorney in order to have defendant's name formally removed from the deed. The attorney's office notes of that meeting confirm that Moshir would be the sole owner of the property, and the attorney would prepare a deed transferring defendant's interest in the property to Moshir. Moshir and defendant believed that defendant's name had been removed from the deed. However, the attorney unexpectedly died without having filed a new deed.
In 2000, 2001, 2002, and 2003, defendants submitted applications to the BHA for low income public housing, and represented that they had no assets and owned no real property. They listed the property as their residence and Moshir as their landlord.
On December 1, 2003, defendants signed a lease with the BHA for an apartment located in Bayonne. In their 2004 through 2007 applications for continued occupancy, defendants represented that they did not have any assets or own real property, and did not dispose of any assets for less than fair market value during the prior two years.
The lease permitted the BHA to evict defendants if they made a misrepresentation of any material fact in the application for housing, or in any statements submitted to the BHA. In 2007, after receiving an anonymous tip that defendant owned the property, the BHA discussed the matter with him. Defendant thereafter executed a deed in May 2008, conveying his interest in the property to Moshir. In June 2008, the BHA notified defendant that his ownership interest in the property rendered him ineligible for public housing, and it would seek to terminate the lease due to his misrepresentation of ownership. The BHA told defendant to vacate the apartment and surrender the keys in order to avoid legal action.
Defendants did not vacate the apartment. On August 28, 2008, the BHA served a notice to quit and demand for possession.
The BHA subsequently filed a complaint, seeking a judgment of possession. The BHA alleged that defendants "knowingly and fraudulently misrepresented to [the BHA] that they did not own any real property by certifying that they were tenants residing at real property owned solely by . . . [Moshir]." In an amended complaint, the BHA sought damages for breach of contract, negligent misrepresentation, intentional/fraudulent misrepresentation, fraud, and unjust enrichment. The BHA sought damages of $73,949, representing fair market value rent for the period of defendants' tenancy.
At trial, the judge instructed the jury on the elements of fraud and the BHA's burden to prove each element by clear and convincing evidence. The judge also instructed the jury as follows:
If you find that a reasonable person would have considered the representation important in deciding whether to proceed with the transaction or that the defendant knew that the plaintiff considered the fact important and would rely on it and you find that the plaintiff's . . . belief of the representation was a substantial factor in this decision to engage in the transaction, your verdict would be ...