PER CURIAM.
Plaintiff Rhonda Katz appeals, challenging an order granting summary judgment to defendants N.T. Callaway Real Estate Broker, LLC ("Callaway Real Estate"), Norman Callaway, and Debra Costa (collectively "the defendants"). We affirm.
The following facts are taken from the parties' statements of undisputed facts and where indicated from the parties' deposition testimony.
Plaintiff found online a property located at the intersection of Maddock Road and Bear Tavern Road in Hopewell Township, Mercer County. The Property was near the Jacobs Creek Bridge, built in 1882, which connected the portions of Bear Tavern Road on either side of the creek. Plaintiff testified she appreciated the view of the historic bridge, the noise cars made crossing the planked bridge, and its bucolic setting. She also testified she liked that the bridge and the T-intersection approaching it slowed car traffic and could not accommodate large trucks.
Debra Costa of Callaway Real Estate was the listing agent for the Property for the owner Max Krosnick, since deceased. Costa described the Property in the Multiple Listing Service as containing a small house that was "once the `gentleman's cottage' of an old estate." Costa felt the noise of cars crossing the bridge was detrimental to sale of the Property. In April 2007, Costa asked Krosnick's daughter if Krosnick had any knowledge about plans to "fix" the bridge. Costa testified she received no response. Costa asked someone in the Township municipal building if they knew of any plans to fix the bridge and was told they had no knowledge of any such plans. Costa testified she did not know it was a County bridge.
In the second week of November 2007, Costa was present when plaintiff visited the Property with third-party defendant Stanley Komito, whom plaintiff retained as her agent to purchase a residential property. Regarding this visit, plaintiff testified as follows. She asked Costa if the Property extended all the way to the shores of Jacobs Creek. Costa replied "no, the county took a small right-of-way in the 1960s." When Komito asked what the right-of-way was for, Costa responded "that the county took the right-of-way to be able to repair and maintain the historic bridge." Komito similarly testified Costa said the right-of-way was for the maintenance of the bridge.
Plaintiff retained attorney Daniel Green to serve as her real estate counsel to review the agreement of sale, order a survey of the Property, and handle the title search. Green testified as follows. He recalled that in the title binder for the Property "there was a right-of-way agreement from the 1960s" which concerned "a potential road widening." Review of the documents showed a 1966 agreement indicating that the County had acquired property from Krosnick's predecessors "for the realignment of Bear Tavern Road."
Green testified he determined the agreement was not for a right-of-way but was a road grant deeding property to the County. Green explained that a "[r]ight-of-way is an access grant. Road grant means you're actually dedicating that piece of property to the township." Green noted that the road grant was reflected on the survey, which showed a triangular area — between the property line and the fence running alongside Bear Tavern Road — which was no longer part of the Property. Green testified the road grant was not limited to bridge maintenance, but could be used for road widening and other purposes.
Green testified it was his practice to explain such a road grant to a client, that he had a discussion with Komito at closing explaining "the consequences of a road grant" and the potential for a road widening, and that plaintiff was present for that discussion.
Plaintiff testified the only discussion she had with Green at closing about the right-of-way was that he asked if she was "aware of the right-of-way," and she said yes. She testified he showed her the survey with the R.O.W. line indicated on it. She signed the survey indicating it was "Approved." Plaintiff testified "[t]he title report said that there was an easement and a road grant, from my recollection, but I thought that's what Debra [Costa] had explained to us." Plaintiff said she was unaware the title report showed that the County purchased the easement "for purposes of road realignment." Under our standard of review on summary judgment, we assume Green did not have any discussion with plaintiff or Komito beyond what plaintiff described in her testimony.
Plaintiff purchased the Property in December 2007. Eighteen months later, plaintiff put the Property on the market due to her financial issues. She testified she then learned from a neighbor that the County had plans for Bear Tavern Road and the 1882 bridge. The County secured permits, realigned the road to remove the T-intersection, and replaced the 1882 bridge with a modern structure capable of carrying trucks and cars at a higher speed.
In 2011, plaintiff filed a complaint in the Law Division against defendants and the estate of Max Krosnick. Plaintiff contended that the County had been considering replacing the 1882 bridge for over forty years. She noted that articles were published in 2001 through 2004 concerning the County's plans for the bridge and opposition to those plans. She argued defendants were aware of the County's plans.
Defendant's complaint alleged consumer fraud, common-law fraud, and negligence. On January 14, 2014, the trial court entered an order granting defendants' summary judgment motion. After plaintiff dismissed her claim against the estate, she appealed, arguing the court improperly dismissed her fraud counts.
Summary judgment must be granted if the court determines "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."
We "review the trial court's grant of summary judgment de novo under the same standard as the trial court."
The trial court's first reason for dismissing plaintiff's fraud counts against defendants was the "Entire Agreement" clause in the parties' real estate contract. The clause stated: "This Contract contains the entire agreement of the parties. No representations have been made by any parties, the REALTOR(S) or their agents, except as set forth in the Contract." Defendant argues the trial court erred in relying on the Entire Agreement clause. We agree, because plaintiff's claims allege fraud in the inducement of the contract.
"In general, the parol evidence rule prohibits the introduction of evidence that tends to alter an integrated written document."
Thus, where "fraud in the inducement is charged, ... testimony [is not] made inadmissible because the contract in suit includes a provision, `This is our entire agreement, and cannot be changed orally.'"
Accordingly, the trial court erred to the extent it relied on the Entire Agreement provision as barring consideration of plaintiff's evidence of fraud in the inducement. Nonetheless, the trial court also considered alternative bases for summary judgment. Like the trial court, we find summary judgment appropriate on common-law fraud because Green had knowledge of the road grant, and that knowledge of plaintiff's attorney was imputed to plaintiff.
Plaintiff does not dispute Green's deposition testimony that he learned that: what was sometimes referred to as a County "right-of-way" was in fact a road grant deeding property to the County; and the road grant was not limited to bridge maintenance but could be used to widen Bear Tavern Road or realign it, which plaintiff contended enabled the County to remove the T-intersection and put in a higher-speed bridge.
Plaintiff denies Green conveyed that information to her or Komito. Nonetheless, that is not dispositive if such knowledge is legally imputed to plaintiff.
It is undisputed that, as Green testified, the road grant was recorded, included in the title binder, and noted in the exceptions. Generally, "whenever any deed or instrument ... [is] duly recorded ... such record shall, from that time, be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution of the deed or instrument so recorded and of the contents thereof."
Moreover, as the trial court noted, "it has been held unequivocally that knowledge on the part of the attorney for a purchaser of land ... of a defect in title is imputed to the client."
"The imputation doctrine is derived from common law rules of agency relating to the legal relationship among principals, agents, and third parties. Pursuant to those common law rules, a principal is deemed to know facts that are known to its agent."
Under the
We find the
Plaintiff argues imputing knowledge here is contrary to
Plaintiff notes that imputation serves "to protect innocent third parties with whom the agent deals on the principal's behalf."
Here, Green was undeniably acting as plaintiff's agent.
That imputed knowledge was fatal to plaintiff's common-law fraud claim. Common law fraud has five elements: "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages."
The effect of the imputed knowledge on plaintiff's CFA claim is less obvious because "the CFA `does not require proof of reliance,' but only a causal connection between the unlawful practice and ascertainable loss."
"To prevail on a CFA claim, a plaintiff must establish three elements: `1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.'"
"In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle[.]"
Plaintiff alleges she lost the benefit of the bargain because the road grant allowed the County to realign the road and replace the bridge, disturbing the Property's bucolic setting with construction and traffic, interfering with her enjoyment of her Property, and depriving her of the aesthetic pleasures she derived from the historic bridge. "[A] benefit-of-the-bargain claim can[] support an ascertainable loss sufficient to allow a CFA claim to proceed to the factfinder; [however], it is the quality of the proofs that will determine a claim's viability."
Moreover, "our courts have long recognized that `non-economic damages are not recoverable under the CFA.'"
"[W]hen a plaintiff fails to produce evidence from which a finder of fact could find or infer that a plaintiff suffered a quantifiable or otherwise measurable loss as a result of the alleged CFA unlawful practice, summary judgment should be entered in favor of defendant."
Affirmed.