NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1288-09.
Peter A. Ouda, attorney for appellants.
Mills & Mills, P.C., attorneys for respondent McManus & Co. (John M. Mills, III, of counsel and on the brief).
Laddey, Clark & Ryan, L.L.P., attorneys for respondents Jim Gallo and Weichert Realtors (Thomas N. Ryan and Jessica A. Jansyn, on the brief).
Before Judges Sapp-Peterson and Haas.
Plaintiffs appeal the grant of summary judgment in favor of the realtor with whom they expressed an interest in purchasing restaurant property in 2004, defendant Weichert Realtors (Weichert); the agent who listed the property at that time, defendant Jim Gallo; and McManus & Company, P.C., the accounting firm that provided information about the employees working at the restaurant in 2006 when plaintiff purchased the property. We affirm.
In 2004, Sharon Roth was interested in purchasing an ice cream store. At the time, Weichert had a real estate listing for a restaurant located in Allmuchy, known as "Big Scoop." Roth, along with her former husband, met with the restaurant's owners and Jim Gallo, the broker. Plaintiff discussed her plans to open a gourmet cooking establishment and was told by Gallo that the restaurant was a turn-key operation, meaning that upon purchasing the property, Roth would receive a business ready to function. The discussions included Gallo showing Roth a set of books and advising what kind of business she could operate on the premises. Roth, however, did not purchase the property at that time. Instead, the restaurant was purchased by defendant Christopher Underwood.
Two years after purchasing the restaurant, Underwood contacted Roth and advised her that he was selling the restaurant and that Gallo had given her name to him. Underwood explained that although Weichert was the listing agency, if she was still interested in the property and purchased it from him, Gallo would not receive a commission because she had been listed as an exclusive to his listing with Gallo and Weichert. Relying upon the representations about the property which Gallo had made two years earlier, she commenced negotiations with Underwood.
During the negotiations, she expressed concerns about how employees were being paid. Underwood told her that he paid his staff weekly in cash. Roth did not intend to continue this practice, which is considered lawful. Underwood assured her that his employees would be made lawful prior to closing and agreed to produce a letter from his accountant confirming that the employees were being lawfully paid. Underwood's accountant, defendant McManus, provided a letter dated October 16, 2006, confirming that Underwood's business "ha[d] active employees . . . on [the] payroll for the fourth quarter, 2006." The letter listed the names of the current employees. Underwood also provided copies of the employees' dated and signed W4s prior to closing. After the closing, Roth learned that Underwood had continued to pay his employees in cash until the last day of their employment by Underwood. Roth learned that sometime after Underwood provided this information, he resumed paying his employees in cash and continued to do so until the last day of their employment by him.
On April 21, 2009, plaintiffs filed a complaint against Underwood, Arrowhead Properties, L.L.C., of which Underwood was the sole member, Weichert, Gallo, McManus, and the law firm of Courter, Kobert & Cohen. In lieu of filing an answer, Weichert and Gallo moved to dismiss the complaint. The court converted the matter into a summary judgment motion because it considered matters outside of the record and granted their motion. McManus filed an answer to the complaint and, one year later, filed a motion for summary judgment, which the court granted.
Plaintiff asserted consumer fraud, N.J.S.A. 56:8-1 to -195, and negligence claims against Weichert and Gallo. In granting summary judgment in their favor, Judge Deanne M. Wilson found that plaintiffs' claims did not establish a cause of action based upon consumer fraud, which the judge noted addresses a "misrepresentation or unconscionable commercial practice in connection with the sale or advertisement of any merchandise or real estate." Judge Wilson concluded there was no sale or ...