JOHN MROZ VS. ETHEL HANDLERÂ (C-0097-15, MORRIS COUNTY AND STATEWIDE)
A-3957-15T2
| N.J. Super. Ct. App. Div. | Jul 31, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3957-15T2
JOHN MROZ,
Plaintiff-Respondent/
Cross-Appellant,
v.
ETHEL HANDLER,
Defendant-Respondent,
and
WALPACK HUNTING AND
FISHING CLUB, WALPACK
PROPERTIES, LLC,
Defendants-Appellants/
Cross-Respondents.
_____________________________
Argued May 24, 2017 – Decided July 31, 2017
Before Judges Simonelli, Gooden Brown and
Farrington.
On appeal from the Superior Court of New
Jersey, Chancery Division, Morris County,
Docket No. C-0097-15.
Kevin P. Kovacs argued the cause for
appellants/cross-respondents.
Eric A. Inglis argued the cause for
respondent/cross-appellant (Schenck, Price,
Smith & King, LLP, attorneys; Mr. Inglis, of
counsel and on the briefs).
PER CURIAM
Walpack Hunting and Fishing Club (WHFC) and Walpack
Properties, LLC, (Walpack), (collectively defendants), appeal from
several Chancery Division orders. Defendants appeal from the May
13, 2016 order granting plaintiff, John Mroz's, motion for summary
judgment and the April 7, 2016 and December 7, 2015 orders denying
defendants' motions for summary judgment. Plaintiff cross-appeals
from the May 13, 2016 order denying his application for counsel
fees. We affirm the trial court's orders in their entirety.
I.
We derive the following facts from evidence submitted by the
parties in support of, and in opposition to, the summary judgment
motions, viewed in the light most favorable to the opposing party.
Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co.,142 N.J. 520
, 523 (1995)).
In October 2011, octogenarian Bernard Handler leased both the
hunting and fishing rights for his property in Walpack Township
and the use of a farmhouse on the property to WHFC for a term of
2 A-3957-15T2
five years. WHFC was a non-profit corporation formed by Bernard's1
friend and attorney, Robert J. Benbrook, Robert's son and a mutual
friend for the express purpose of leasing the property from Bernard
and recruiting hunters to become members of their hunting club.
Robert was responsible for drafting the lease agreement and
acted on WHFC's behalf despite having an "attorney/client
relationship" with Bernard at the time and identifying himself as
Bernard's "agent." Prior to October 2011, Bernard leased the
property to a local rod and gun club (R&GC) and decided not to
renew the lease with R&GC because "[h]e was upset with the members"
for "hunt[ing] in an area of the property designated as a
sanctuary[.]" Robert claimed Bernard "agreed to lease the property
[to WHFC] on the same terms and conditions of the existing lease
[with R&GC]" and that Bernard was to provide him with a copy of
the R&GC lease to use as a model. According to Robert, Bernard
failed to provide him with the R&GC lease and "[w]hen [Robert]
pressed him for a copy of [the] lease, [Bernard] specifically said
that [Robert] should prepare a simple straight-forward lease
without regard to that[,] incorporating the terms that [they] had
agreed to." In his cover letter accompanying the final draft of
1
Because some of the parties share common surnames, we refer to
them by their first names for clarity and ease of reference and
intend no disrespect.
3 A-3957-15T2
the lease, Robert "confirm[ed] [their] conversation wherein
[Bernard] and [Robert] agreed to enter into this [l]ease based on
[their] mutual friendship and trust[.]"
WHFC's lease differed from the R&GC's draft renewal lease in
four significant ways and included terms that were extremely
beneficial to WHFC. First, WHFC's lease only required an annual
payment of $5500, whereas the R&GC lease required the club to pay
nearly double that amount. According to Robert, the higher R&GC
rental figure accounted for $3000 of rent from a fishing club's
use of the property, that was collected by R&GC and remitted to
Bernard, whereas under the WHFC lease, the fishing club paid
Bernard directly. In addition, Robert claimed that the remaining
differential reflected WHFC's assumption of repair costs for which
Bernard had previously been responsible.
Second, WHFC's lease shifted the responsibility of
maintaining liability insurance from the lessee to Bernard,
although Robert claimed this was "a clerical error" and, in fact,
WHFC paid for the liability insurance throughout its tenancy.
Third, the R&GC lease created a "sanctuary" that club members were
prohibited from entering, which was omitted from the WHFC lease.
While Robert claimed he had no knowledge of the sanctuary provision
and asserted that Bernard "never asked that it be placed in the
. . . [l]ease[,]" Robert indicated that "[Bernard] did walk the
4 A-3957-15T2
property with the [WHFC] club members, pointed out the boundaries
of the 'sanctuary[,]' and got the members['] commitment that no
hunting would occur therein."
Finally, WHFC's lease provided WHFC with a right of first
refusal, which required Bernard to offer the property to WHFC
before selling it to a third party, rather than a renewal option
as reflected in the R&GC lease. The right of first refusal
provision stated:
Landlord herein grants Tenant a right of first
refusal pursuant to which Tenant shall have
the right to purchase the Premises or any
portion thereof to be sold by Landlord on the
same terms and conditions as evidenced by a
bona fide arm[']s length contract between
Landlord and a prospective purchaser. This
right of first refusal shall become null and
void unless exercised in writing by Tenant,
certified mail, return receipt requested,
within thirty (30) days of written notice of
the purchase offer the terms and conditions
of, and Landlord's intention to convey
pursuant thereto.
Robert conceded at his deposition that he obtained the right
of first refusal so that WHFC could use it "as leverage maybe to
get a . . . renewal[.]" Robert also admitted he "tactical[ly]
withheld from [Bernard] that members of WHFC sought a renewal
clause due to their concern that [Bernard] might 'arbitrarily'
terminate the lease." In his deposition testimony, Robert admitted
deceiving Bernard, stating:
5 A-3957-15T2
I was not going to tell [Bernard that the
lessee sought a lease with a five-year
renewal], even though I was [Bernard's] agent,
in my view that's what I was in this deal, his
agent, but you . . . have to be a little
tactical about this. I wasn't going to tell
[Bernard that WHFC] think[s] that you were
arbitrary in throwing [the former lessee] off
and they don't want to be in that position.
So instead of telling [Bernard] that, I
said [Bernard], you know, you're in your 80's,
this is a five-year lease, you're agreeing to
a five-year lease. Well you're telling me
that if they're good tenants, you're going to
renew, and that's what he kept telling me,
don't worry about it, [Robert], you know,
they're good tenants, I'm going to renew, why
would I not renew.
And my answer was, well, they would tell
me, [Robert], we're not happy with that
because he didn't do that with the prior guys,
he threw them off, so we want something more.
So [Bernard] finally said to me, I'm not
going to give them a five-year renewal, but
if you're concerned about the fact that I'm
an old fart and I might not be here to renew
at the end of five years, . . . if you think
. . . your group is going to be dealing with
other people, I'll give you a right of first
refusal.
When the lease was executed on October 3, 2011, Elryan, Inc.,
a corporation wholly-owned by Bernard,2 held title to the property.
However, Elryan was not mentioned in the lease and nothing
suggested that Bernard executed the lease in a representative
2
Elryan's corporate charter was voided by the State on September
9, 1982 for failure to pay taxes.
6 A-3957-15T2
capacity. Robert executed the lease in his capacity as WHFC's
vice president and later identified himself as WHFC's president
as well as Bernard's "lawyer" and "friend" in a signed letter
asserting the rights of the club members under the lease.
In his November 19, 2015 certification, Robert conceded that
"an attorney/client relationship" was ongoing during the lease
transaction and does not dispute that he neglected to disclose his
conflict of interest in writing to Bernard prior to executing the
lease. In his deposition testimony, Robert also conceded that "at
some point in time, . . . I think I probably became [Bernard's]
attorney with regard to this lease, but not initially." Although
Robert was aware during lease negotiations that Bernard was
represented by Karen Spano on a separate matter involving the
subdivision and sale of a portion of the same property, Robert
stated he did not know if Bernard consulted with Spano regarding
the lease and Spano later confirmed in her deposition testimony
that she was not consulted.
By March 2012, Bernard's physical and mental health had
deteriorated so precipitously that, with Robert's assistance,
Bernard executed a Power of Attorney in favor of his wife, Ethel
Handler, and her niece on March 21, 2012. According to Ethel,
Bernard "suffer[ed] from the symptoms of [d]ementia" around this
time. Bernard passed away the following year and Robert
7 A-3957-15T2
represented Ethel and her niece after Bernard's death. At Ethel's
direction, Robert conveyed the property to Ethel on April 22,
2013, and recorded a deed effectuating the transfer on May 6,
2013. Subsequently, the lease was recorded on April 29, 2014.
Notwithstanding Bernard's passing, Robert stated that Ethel
continued to accept WHFC's rental payments.
On June 3, 2015, Ethel entered into a contract to sell the
property to plaintiff. One of the contract provisions specified
that Ethel would immediately provide written notice of the contract
in accordance with the lease and "[i]n the event that the [t]enant
exercises its option and the [t]enant purchases the property on
the same terms, [the] contract shall be null and void." Ethel
notified WHFC of the contract by letter dated June 8, 2015. On
June 25, 2015, WHFC responded by assigning its right of first
refusal in consideration of one dollar to Walpack, a company formed
by Robert two days prior and of which Robert was the sole member.
Walpack swiftly asserted the right of first refusal against
plaintiff and tendered an offer to purchase the property from
Ethel under the same terms as plaintiff's contract.
8 A-3957-15T2
Plaintiff countered by filing a Verified Complaint on July
13, 2015, against Ethel,3 WHFC, Walpack and fictitiously-named John
Doe defendants, seeking to enjoin Walpack from exercising its
right of first refusal, void the assignment of the right of first
refusal, and obtain an award of attorney's fees. Finding good
cause for a preliminary injunction, the trial court restrained
Ethel from conveying the property to WHFC or Walpack pending
resolution of the matter.
Defendants filed a contesting answer to plaintiff's complaint
and cross-claimed against Ethel, "demand[ing] judgment against
[Ethel] for specific performance conveying the [p]roperty to
[Walpack.]" Ethel answered both plaintiff's complaint and
defendants' cross-claims, urging that judgment be "entered in
favor of plaintiff allowing for specific performance of the
conveyance of the [p]roperty to [p]laintiff" and "invalidating
[defendants'] [l]ease." Ethel "denie[d] that Walpack [was]
entitled to any relief and instead demand[ed] that Walpack's
[c]rossclaims be dismissed with prejudice[.]" Ethel asserted that
"the [l]ease [was] invalid because it was entered into at a time
3
Although Ethel is a named defendant in this case, plaintiff's
complaint primarily targeted WHFC and Walpack. Further, in the
Law Division, Ethel supported plaintiff's position. On appeal,
we entered an order on October 17, 2016, suppressing Ethel's brief
for her failure to timely file it.
9 A-3957-15T2
when Bernard's attorney, Robert Benbrook, Esq., was acting in
violation of R.P.C. 1.8."
In December 2015, the parties filed motions for summary
judgment.4 On December 7, 2015, the court denied both motions to
permit additional discovery. The court found that R.P.C. 1.8(a)
was violated because Robert admitted "that he and [Bernard] had
an attorney-client relationship during the lease transaction" and
Robert "signed the lease on behalf of WHFC," of which he was "a
co-founder" and "served as its president, vice president, and
legal counsel[,]" thus acquiring "a pecuniary interest adverse to
his client for the purposes of [R.P.C.] 1.8(a)." However, the
court determined that material questions of fact existed regarding
defendants' rebuttal of the presumption of invalidity. In this
regard, the court acknowledged that the presumption of invalidity
could be rebutted with "evidence showing full and complete
disclosure of all facts known to the attorney, absolute
independence of action on the part of the client, the fairness and
equity of the transaction, the lack of overreaching, and the
client's understanding of the importance of independent
representation."
4
Ethel's filing supported summary judgment in plaintiff's favor.
10 A-3957-15T2
The court noted that because Robert's certification did not
address the R.P.C. 1.8(a) issues, and, at that juncture, he had
not yet been deposed, "[h]e should be given the opportunity to
testify as to what took place between himself and [Bernard]." The
court noted further that "[o]ther individuals can . . . attest to
facts relating to [Bernard's] sophistication, and Ms. Spano['s] .
. . involvement in the lease transaction." Additionally, the
court noted that because Bernard "had plenary control over the
property as its sole shareholder[,] . . . the lease [was likely]
enforceable notwithstanding its failure to name Elryan, Inc., as
a party[,]" and WHFC's assignment to Walpack was "[n]ot, by
[i]tself, [i]nvalid."
After both sides provided additional discovery, the parties
again moved for summary judgment. On April 7, 2016, following
oral argument, the court denied defendants' summary judgment
motion, rejecting defendants' argument that plaintiff had no
standing because his contract of sale was null and void by virtue
of defendants' exercise of the right of first refusal. Reiterating
its prior ruling that Robert violated R.P.C. 1.8(a) by his own
admission, the court deferred adjudicating plaintiff's summary
judgment motion pending supplemental briefing on the consequences
of the violation.
11 A-3957-15T2
Thereafter, in a May 13, 2016 order and written opinion, the
court granted plaintiff's motion for summary judgment, again
denied defendants' cross-motion for summary judgment, and denied
plaintiff's application for counsel fees. The court found that
the questions of fact that formerly precluded summary judgment
were no longer at issue. The court explained that "[p]laintiff
has now presented uncontroverted evidence that [defendants']
lease, including the right of first refusal contained therein,
[was] invalid and unenforceable under [R.P.C.] 1.8(a)."
The court reasoned that there was "uncontroverted evidence
that [Robert] both intentionally misrepresented WHFC's motivation
for seeking a renewal clause and failed to disclose a known
likelihood that WHFC may later misuse the right of first refusal
[as leverage] to obtain a lease renewal against [Bernard's] will."
The court pointed to Robert's admission that he "intentionally"
and "tactically" reinforced Bernard's "false belief" that WHFC
members sought a renewal clause out of concern that Bernard would
predecease their leasehold when, in fact, they sought a renewal
clause due to their concern that Bernard "might arbitrarily
terminate the lease." According to the court, Bernard's "false
belief," which Robert "fail[ed] to correct" but rather
"encouraged[,]" led Bernard to grant "a right of first refusal in
lieu of a renewal clause."
12 A-3957-15T2
The court also pointed to the fact that the WHFC members "had
not been inclined to accept the lease without a renewal clause
until [Robert] informed them that they could use the right of
first refusal as a source of leverage to later obtain the renewal
that [Bernard] refused to provide." According to the court,
"having advised WHFC to misuse the right of first refusal to wrest
additional property rights away from [Bernard]," Robert "was thus
aware that such a likelihood both existed and was within WHFC's
contemplation." The court concluded that because "[t]his fact was
material to the lease negotiations, and [Robert] failed to disclose
it to [Bernard,]" it constituted another material omission in
violation of R.P.C. 1.8(a).
The court determined that "[t]hese omissions of material fact
[were] fatal to [defendants'] ability to rebut the presumption of
invalidity raised by [Robert's] facial violation of the Rule."
Citing Petit-Clair v. Nelson, 344 N.J. Super. 538, 542 (App. Div. 2001) and Cohen v. Radio-Electronics Officers Union,146 N.J. 140
,
156 (1996), the court concluded that, as a matter of law, Robert's
ethics violations invalidated the lease agreement and accompanying
right of first refusal. According to the court, once WHFC assigned
the right of first refusal to Walpack, of which Robert was the
sole member, application of R.P.C. 1.8(a)(1)-(3) invalidated the
assignment. As a result, the court concluded that defendants were
13 A-3957-15T2
stripped of any interest in the property.5 Finally, the court
noted that "[n]o basis to award counsel fees was presented to the
[c]ourt and so none was awarded." This appeal and cross-appeal
followed.
II.
We review a ruling on a motion for summary judgment de novo,
applying the same standard governing the trial court. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citation omitted). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra,142 N.J. at 540
. If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman,430 N.J. Super. 325
, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster,213 N.J. 463
, 478 (2013). "[F]or mixed questions of law
5
The court observed that Robert likely violated R.P.C. 1.7(a)(1)
as well, prohibiting "an attorney from representing one client
where it will be directly adverse to another client," by acting
as Bernard's counsel during the lease negotiations.
14 A-3957-15T2
and fact, [we] give[] deference . . . to the supported factual
findings of the trial court, but review[] de novo the lower court's
application of any legal rules to such factual findings." State
v. Pierre, 223 N.J. 560, 577 (2015) (citations omitted).
This standard compels the grant of summary judgment "if the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show 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." R. 4:46-2(c). "To defeat a motion for summary judgment,
the opponent must 'come forward with evidence that creates a
genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J.
Super. 589, 605 (App. Div. 2014), certif. denied,220 N.J. 269
(2015) (citation omitted). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion[.]" Puder v. Buechel,183 N.J. 428
, 440-41 (2005)
(citations omitted).
Applying the above standards, we discern no reason to reverse
the grant of summary judgment to plaintiff. Defendants argue the
court erred because the facts do not support the conclusion that
the lease was a "'business transaction' within the meaning of
R.P.C. 1.8(a)" and the lease did not provide Robert "with an
ownership, possessory, security or other pecuniary interest
15 A-3957-15T2
adverse to [Bernard]." In the alternative, defendants argue that
"[e]ven assuming R.P.C. 1.8(a) applies," the court erred in
determining that the presumption of invalidity was not overcome
"based on the specific facts of the case." We disagree.
New Jersey's Rules of Professional Responsibility expressly
forbid "[a] lawyer [from] enter[ing] into a business transaction
with a client or knowingly acquir[ing] an ownership, possessory,
security or other pecuniary interest adverse to a client unless"
the attorney meets the following three conjunctive requirements:
(1) the transaction and terms in which the
lawyer acquires the interest are fair and
reasonable to the client and are fully
disclosed and transmitted in writing to
the client in a manner that can be
understood by the client;
(2) the client is advised in writing of the
desirability of seeking and is given a
reasonable opportunity to seek the advice
of independent legal counsel of the
client's choice concerning the
transaction; and
(3) the client gives informed consent, in a
writing signed by the client, to the
essential terms of the transaction and
the lawyer's role in the transaction,
including whether the lawyer is
representing the client in the
transaction.
[R.P.C. 1.8(a).]
In Milo Fields Trust v. Britz, 378 N.J. Super. 137, 149 (App.
Div. 2005), we explained that "business transaction[s] between an
16 A-3957-15T2
attorney and client [are] not prohibited" by R.P.C. 1.8(a), but
instead are deemed "presumptively invalid[.]" An attorney
overcomes this presumption of invalidity by showing: "[(1)] full
and complete disclosure of all facts known to the attorney, [(2)]
absolute independence of action on the part of the client, [(3)]
the fairness and equity of the transaction, [(4)] the lack of
overreaching, and [(5)] the client's understanding of the
importance of independent representation." Ibid.(citing P&M Enters. v. Murray,293 N.J. Super. 310
, 314 (App. Div. 1996)). The party seeking to affirm the transaction must prove each element by "the clearest and most convincing evidence[.]" Murray,supra,
293 N.J. Super. at 314
(citations omitted).
An attorney's failure to rebut the presumption typically
results in the invalidation of the transaction. Van Horn v. Van
Horn, 415 N.J. Super. 398, 415 (App. Div. 2010) (citing Milo Fields Trust,supra,
378 N.J. Super. at 154
). Although harsh, this remedy reflects New Jersey's strong public policy against ethical violations by attorneys. Our Supreme Court has long held "'the primary reason for discipline is not to punish the attorney but to protect the public against members of the bar who are unworthy of their trust.'" In re Ort,134 N.J. 146
, 158 (1993) (quoting In re Lunn,118 N.J. 163
, 167 (1990)).
17 A-3957-15T2
In these circumstances, defendants cannot overcome the
presumption of invalidity. It is undisputed that Robert was either
the vice-president or president of WHFC, which received both a
favorable lease and a strategic advantage by virtue of the right
of first refusal on Bernard's property. Further, Robert admitted
that he did not provide Bernard with written notice or full
disclosure of the transaction or inform him of the right to seek
independent counsel, knowing that Bernard had another attorney at
the time who represented him in connection with an unrelated matter
involving the same property. Because defendants cannot satisfy
the exemption from R.P.C. 1.8(a)'s presumptive bar, the lease and
right of first refusal are invalid. That said, equally unavailing
is defendants' challenge to plaintiff's "standing to enforce [the
purchase contract[,]" predicated on the argument that plaintiff's
"[c]ontract is void" because it is "conditioned upon [WHFC] not
exercising its right of first refusal[.]"
In his cross appeal, plaintiff seeks reimbursement of his
attorney's fees, arguing that this court's holding in Innes v.
Marzano-Lesnevich, 435 N.J. Super. 198(App. Div. 2014), aff'd in part and modified in part,224 N.J. 584
(2016), allows a non-
client third party to recover attorney's fees from a lawyer as a
result of the lawyer's ethical violation if the lawyer owed an
independent duty to that third party. Although plaintiff sought
18 A-3957-15T2
an award of attorney's fees in his complaint, in granting summary
judgment to plaintiff, the court denied awarding attorney's fees
noting "[n]o basis to award counsel fees was presented to the
[c]ourt[.]" This court "'will decline to consider questions or
issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the
questions so raised on appeal go to the jurisdiction of the trial
court or concern matters of great public interest.'" Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (quoting State v. Robinson,200 N.J. 1
, 20 (2009)). Plaintiff did not properly present this
issue to the trial court and it is not jurisdictional in nature
nor does it substantially implicate the public interest.
Nonetheless, "[i]n the field of civil litigation, New Jersey
courts historically follow the 'American Rule,' which provides
that litigants must bear the cost of their own attorneys' fees."
Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016) (citing Litton Indus., Inc. v. IMO Indus., Inc.,200 N.J. 372
, 404 (2009)). "'[T]he purposes behind the American Rule are threefold: (1) unrestricted access to the courts for all persons; (2) ensuring equity by not penalizing persons for exercising their right to litigate a dispute, even if they should lose; and (3) administrative convenience.'"Ibid.
(quoting In re Niles Trust,176 N.J. 282
, 294 (2003)). There are, however, "'exceptions to
19 A-3957-15T2
the American Rule that are not otherwise reflected in the text of
Rule 4:42-9' and that are not provided for via statute, court
rule, or contract[,]" involving "fiduciary breaches in certain
settings." In re Estate of Folcher, 224 N.J. 496, 507 (2016)
(citations omitted).
In Innes, our Supreme Court held that "a prevailing
beneficiary may be awarded counsel fees incurred to recover damages
arising from an attorney's intentional violation of a fiduciary
duty." Innes, supra, 224 N.J. at 598. There, the plaintiff sued
his wife's attorney for intentionally violating her fiduciary
obligation to the plaintiff when the attorney released plaintiff's
child's passport to his wife without plaintiff's permission. Id.
at 586. The Court explicitly described the Innes attorney as a
fiduciary "holding [the child's] United States passport as
trustees and escrow agents . . . for the benefit of [plaintiff]
and [his wife]." Id. at 598. Here, the Innes exception does not
apply because plaintiff is not a beneficiary of Bernard's
relationship with Robert, but rather a third party who contracted
with Ethel to purchase the property from her. Robert therefore
violated no duty to plaintiff.
Affirmed.
20 A-3957-15T2