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Taste Matters, LLC v. McManus & Company, P.C.

Superior Court of New Jersey, Appellate Division

August 28, 2013

TASTE MATTERS, LLC, and SHARON ROTH, Plaintiffs-Appellants,


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.[2]

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 advertisement that involved Weichert or Gallo at the time plaintiffs purchased the restaurant in 2006. The judge reasoned:

To say that a representation made, and I'm assuming that what she says is true, that representation made at the very beginning of what could have developed into a commercial transaction, to say that representation is going to be operative for an extended period of time even though the person who made that representation had no further contact with the transaction, had no further contact with the buyer, had no participation in the . . . transaction in which she became the owner, just is too attenuated when you are talking about fraud, even the broad interpretation of fraud that you would have under the [C]onsumer [F]raud [A]ct. And if I were to rule as a matter of law that that representation in 2004 bound Mr. Gallo and Weichert to the second . . . sale transaction two years down the line, I would in essence be saying that when a real estate broker takes somebody out to show them a house and says this is not in the wetlands or whatever it is, that that representation binds that real estate broker forever, as long as that person buys that house at some point in time having nothing to do with that original real estate broker, that . . . real estate broker is bound. That would be in my estimation, or maybe somebody's going to disagree with me some day, but it's carrying the burden too far.

Turning to the negligence count, Judge Wilson similarly concluded that a real estate broker's duty to a client does not "extend for all of time, " and "certainly ends at the time that the real estate broker no longer has a relationship with the customer." She concluded that no reasonable jury could find Weichert and Gallo negligent under circumstances where they no longer had any relationship with plaintiff.

In granting summary judgment in favor of McManus, Judge Stephan C. Hansbury, in his written statement of reasons submitted in accordance with Rule 2:5-1(a), found that summary judgment was appropriate because it was undisputed that in accordance with the October 16, 2006 letter authored by McManus, "The Big Scoop had active employees who were on the payroll for the fourth quarter of 2006."

The present appeal followed. On appeal plaintiffs raise the following points:


We have considered the points raised in light of the record and applicable legal principles and conclude plaintiffs' points are without sufficient merit to warrant discussion in a written opinion. We affirm for the reasons expressed by Judge Wilson in her July 17, 2009 oral statement of reasons and Judge Hansbury's November 3, 2010, written statement of reasons. We add the following brief comments.

We apply a plenary standard of review from a trial court's dismissal of a complaint pursuant to Rule 4:6-2(e). Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011). Moreover, the legal conclusions of the trial court are reviewed de novo, without any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We review summary judgment decisions de novo and apply the same standard utilized by the trial court, namely, whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence is so one-sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Viewing plaintiffs' complaint with all liberality, accepting every allegation as true, and affording plaintiffs every reasonable inference of fact, see Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989), the sole allegation in support of the consumer fraud violation and negligence claims asserted against Weichert and Gallo stem from representations made in 2004, which representations did not result in plaintiffs purchasing the property at that time. There is no evidence in the record that at the time plaintiffs purchased the property from Underwood in 2006, plaintiffs engaged in any discussions with Weichert or Gallo at that time.

Consequently, there is no causal connection between the Weichert and Gallo and plaintiffs' real estate transaction. See O'Loughlin v. Nat'l Cmty. Bank, 338 N.J.Super. 592, 606 (App. Div. 2001) (finding no CFA liability where "record fails to reveal any direct or indirect promises made by the [banking defendant] that were in any way connected with the sale of the subject condominium units"), certif. denied, 169 N.J. 606 (2001). Likewise, because there was no relationship between Weichert and Gallo and plaintiffs in 2006, these defendants breached no duty of care owed to plaintiffs. See, e.g., Frederick v Smith 416 NJ Super 594 601 (App Div 2010) (finding that in the absence of an agreement or relationship between the plaintiff and the investment brokerage firm no duty of care could be imposed upon the brokerage firm "to periodically or regularly police the personal account maintained by [the plaintiff] for indicia of fraud") certif. denied, 205 NJ 317 (2011)

Likewise the sole allegation against McManus is that it authored a letter stating there were active employees of Underwood for the fourth quarter of 2006 and McManus should have known the contents of the letter were false In support of McManus's summary judgment motion the fourth quarter 2006 tax returns and copies of the quarterly State of New Jersey payroll tax returns for each of the employees listed in the October 16 2006 letter were attached As Judge Hansbury found it was undisputed that as of October 16 2006 the Big Scoop had active employees who were on the payroll for the fourth quarter of 2006 Thus there was no genuinely disputed issue of fact sufficient to defeat summary judgment and McManus was entitled to summary judgment as a matter of law Brill, supra, 142 NJ at 529.


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