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Ernest N. Johnson v. Borough of Lawnside and Allen S. Zeller

February 27, 2012

ERNEST N. JOHNSON, PLAINTIFF-APPELLANT,
v.
BOROUGH OF LAWNSIDE AND ALLEN S. ZELLER, ESQUIRE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2393-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2012

Before Judges Parrillo, Alvarez and Skillman.

This matter arises out of a public auction of property in the Borough of Lawnside (Borough). Plaintiff Ernest Johnson appeals from the Law Division's January 21, 2011 summary judgment dismissal of his complaint against the Borough and its municipal attorney, Allen Zeller, seeking damages for being denied the right to purchase property at the public land sale as the highest bidder, and from a March 18, 2011 order denying his motion for reconsideration. We affirm.

The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) are as follows. Pursuant to N.J.S.A. 40A:12-13, the Borough adopted a resolution on April 25, 2007, authorizing a public land sale to take place on May 14, 2007, and setting forth the conditions of sale. One of the tracts being auctioned is located at 62 Oak Avenue and, as with the other two tracts up for sale, subject to the minimum bid process. All persons electing to bid on the tracts were deemed to have accepted the terms of the bidding process as set forth in the resolution, which directed that the property was to be sold to the highest bidder present at the auction. The successful bidder was required to "immediately" pay 10% of the bid price, by way of cash, cashier's check or certified check to the Borough as a condition of sale. Thus, condition No. 6 of the resolution provided:

Immediately upon the tracts being struck off to them, the purchasers shall sign their names and addresses to an Agreement of Sale, incorporating the Resolution and Conditions by reference and shall pay ten (10%) percent of the minimum bid price in cash or by [cashier's] or certified check payable to the Borough of Lawnside. In the event the purchaser neglects or refuses to sign the Agreement of Sale, the Administrator shall sign the Agreement of Sale as their agent.

Pursuant to the terms of the resolution, the Borough maintained the right to withdraw a tract from sale for "any reason whatsoever" prior to the time the tract was struck off to the successful bidder. The Borough further maintained the right to "reject any and all bids" prior to their confirmation and, further, to re-expose a tract for sale in the event a successful bidder failed to comply with the conditions of the land sale. Plaintiff attended the public land sale on May 14, 2007 intending to purchase the property at 62 Oak Avenue, as did another bidder, Joseph Bruno. At the outset of the auction, an announcement concerning the sale was made and the specific terms contained in the resolution were read verbatim to the public. Plaintiff placed several bids on the property, competing back- and-forth with Bruno. Ultimately, plaintiff outbid Bruno, placing a high bid of $81,000 for the property.

After bidding was closed, in accordance with the resolution, plaintiff was requested by the municipal solicitor, Zeller, to tender 10% of his bid, totaling $8,100, by way of cash or certified funds. Plaintiff then informed Zeller and the Borough Administrator, Jessie Harris, that he did not have the required down payment with him and requested their permission to leave to obtain a certified check for that amount from his bank in Haddonfield. According to plaintiff, both Zeller and Harris allowed him to do so. Upon leaving the premises, he heard Bruno "screaming, hollering and carrying on."

Upon his return one hour later with a certified check in the amount of $8,100 in hand, plaintiff was informed that his bid would not be confirmed because he was not able to immediately tender the required 10% of the bid price by way of cash, cashier's check or certified check, as expressly required by the resolution. Rather, the sale of the property was terminated and later rescheduled for June 20, 2007. Thereafter, the public sale was duly noticed and held on the scheduled date. Plaintiff did not attend the auction and the property was sold to Bruno, the lone bidder on that date.

Plaintiff did not seek to either enjoin the relisting of the property or compel the Borough to convey the property to him. Instead, two years later, on May 12, 2009, he filed a four-count complaint for damages against the Borough and Zeller, alleging racial discrimination, N.J.S.A. 10:5-1 to -49; "fundamentally unfair government action"; a "public employee wrongfully enforcing the law"; and "discriminatory refusal to sell to the plaintiff," 42 U.S.C.A. §§ 1981, 1982, 1983 and 1985. Plaintiff later amended the complaint to add a fifth count, claiming a statutory violation for "failure of both defendants to abide by the requirements for sale of real property by a municipality," N.J.S.A. 40A:12-13. Both defendants answered and Zeller counterclaimed. Following discovery, defendants filed motions for summary judgment, which the Law Division judge granted,*fn1 reasoning in part:

I think it was a mistake to allow Mr. Johnson to leave the building to get a check. And it may be that Mr. Bruno's unhappiness ultimately led Mr. Zeller to change his mind, but that's not racial discrimination, that's just -- that's life, essentially.

[T]he discrimination claims, there's just simply no proof. And all the proof that there is, is exactly the opposite.

[B]ecause of Mr. Bruno's protestations, a decision was made then to strictly comply with the requirement that the funds be immediately available. There may be some cases where a municipality is equitably estopped from going through with the sale, even though it's in violation of the resolution. But this case is not a good case for its application since the only detrimental ...


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