Opinion
DOCKET NO. A-4578-14T4
01-17-2017
LINDA M. THURBER, Plaintiff-Appellant, v. COULTER JAMES THURBER, III, CONESTOGA TITLE INSURANCE COMPANY, MARIA D. FEAN, CONGRESS TITLE CORPORATION, FIDELITY NATIONAL TITLE INSURANCE COMPANY, SJB HOLDINGS, L.L.C., JAMES B. WILSON, CATHIE L. STULL, WOODBURY TITLE AGENCY, L.L.C. a/k/a WOODBURY TITLE GROUP, EFTHEMIOS VELAHOS, INVESTOR COMMERCIAL CAPITAL, L.L.C., Defendants, and THEODORE M. COSTA, SENATE TITLE CO., INC., FIRST AMERICAN TITLE INSURANCE COMPANY, BANK OF AMERICA, N.A., Assignee of NEW CENTURY MORTGAGE COMPANY and CITIMORTGAGE, INC., Assignee of SELECT MORTGAGE CORPORATION, Defendants-Respondents, and THEODORE M. COSTA and SENATE TITLE CO., INC., Third-Party Plaintiffs, v. FRANK OLIVO, ESQ., STEPHANIE OLIVO, ESQ., YOUNGBLOOD, LAFFERTY & SAMPOLI, P.A. (as successor in interest to YOUNGBLOOD, CORCORAN, LAFFERTY & HYBERG, P.A. and YOUNGBLOOD, CORCORAN, LAFFERTY, HYBERG & WALDMAN, P.A.), Third-Party Defendants.
Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the briefs). Marshall D. Bilder argued the cause for respondents Theodore M. Costa, Esquire and Senate Title Co., Inc. (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Bilder, of counsel and on the brief). Robert L. Grundlock, Jr., argued the cause for respondents First American Title Insurance Company, Bank of America, N.A. and CitiMortgage, Inc. (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz, Hoffman and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2467-08. Joseph M. Pinto argued the cause for appellant (Polino and Pinto, P.C., attorneys; Mr. Pinto, on the briefs). Marshall D. Bilder argued the cause for respondents Theodore M. Costa, Esquire and Senate Title Co., Inc. (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Bilder, of counsel and on the brief). Robert L. Grundlock, Jr., argued the cause for respondents First American Title Insurance Company, Bank of America, N.A. and CitiMortgage, Inc. (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief). PER CURIAM
Plaintiff Linda Thurber appeals from the summary judgment dismissal of her Chancery Division complaint, which initially named eighteen defendants and alleged causes of action arising from the fraudulent transfer of title to realty. In her complaint, plaintiff claimed her former husband, defendant Coulter James Thurber, III, fraudulently borrowed against and later sold real property, which was legally titled solely in her name. Plaintiff asserts defendants wrongfully aided Thurber's fraudulent transactions. Among the relief sought, plaintiff requested to quiet title and regain possession of the realty, a condominium in Ocean City.
This appeal centers on two sets of defendants, Theodore M. Costa, Esq. and Senate Title Co., Inc. (collectively, Costa), and First American Title Insurance Company, Bank of America, N.A. and CitiMortgage, Inc. (collectively, First American). These defendants were involved in completed closings of mortgage refinance transactions, which encumbered the property. The trial judge granted summary judgment in favor of Costa and First American in two separate oral opinions issued on August 17, 2009. Plaintiff also appeals from the December 14, 2009 and December 10, 2012 orders denying her motions for reconsideration of provisions in the underlying orders.
We reviewed the issues presented on appeal, in light of the record and applicable law. For the reasons stated in our opinion, we affirm the grant of summary judgment.
I.
The facts are complex and involve multiple transactions and legal actions. We have limited our recital to those facts necessary to address issues raised before us.
The Ocean City property was acquired in 1997, when a deed was issued solely in plaintiff's name. The property was unencumbered and used as a vacation home. Plaintiff and Thurber were married and living together at this time. However, marital discord resulted in plaintiff pursuing dissolution of the marriage; she filed for divorce on August 18, 2004.
The record suggests Thurber suffered from substance abuse and was irresponsible with money, which prompted the asset being placed solely in plaintiff's name.
The matrimonial action, in part, was designed to thwart Thurber's efforts, which plaintiff had discovered, to transfer the Ocean City property to his name and use it for security to obtain loans. In August 2003, Thurber first attempted to mortgage the property. Defendant Costa, who was the closing agent for defendant Senate Title, Inc., conducted a title search and learned plaintiff solely owned the property. Costa informed plaintiff she must attend closing and execute a deed to Thurber in order to complete the loan transaction.
At closing, Thurber presented an unidentified woman posing as plaintiff. She offered an executed quitclaim deed, purportedly transferring title of the Ocean City property to Thurber. Although Costa confirmed the woman signed the deed in his presence, he never verified her identity. It is undisputed plaintiff did not sign the 2003 quitclaim deed. Closing was completed, during which Thurber received $241,077, and Emigrant Savings Bank was given a mortgage as security for the repayment of the debt.
Plaintiff became aware of the mortgage in August 2004, when the loan was not paid, default was declared and Emigrant issued a notice of intent to foreclose. Plaintiff's investigation uncovered the recorded, fraudulent quitclaim deed. Shortly thereafter, plaintiff filed her divorce complaint. She also filed a lis pendens on the Ocean City property and an order to show cause restraining Thurber from transferring or liquidating the realty. Three weeks later, plaintiff dismissed the matrimonial action and withdrew the order to show cause.
In November 2004, Thurber obtained a second loan for $362,000, executing a mortgage to Countrywide, using the Ocean City property as collateral. The first debt to Emigrant was satisfied and after other costs and debts were paid, Thurber received $34,124.10.
Plaintiff acknowledged finding $18,000 "in a shoebox," which she attributed to this transaction. She deposited the sum into her account.
On March 9, 2005, Thurber obtained a $300,000 loan and provided a mortgage to Investor Commercial Capital, LLC (ICC). Although the parties' versions of events surrounding this transaction differ, they agree plaintiff did not sign mortgage documents and acknowledge she became aware of the mortgage shortly after closing.
The record contains evidence plaintiff granted her power of attorney to Thurber to facilitate this transaction. In February 2005, Costa, as title agent for the loan, sought permission from plaintiff's then-divorce counsel to contact her about the purported power of attorney. Plaintiff confirmed to Costa she executed the power of attorney. Ultimately, another title agent closed. During discovery, when questioned regarding this, plaintiff could neither confirm nor deny she issued the power of attorney to Thurber.
In October 2005, Countrywide attempted to foreclose on its mortgage. Shortly thereafter, ICC also commenced foreclosure proceedings. Plaintiff later testified she was aware of these foreclosures, and "I let [Thurber] handle those things." On December 8, 2005, she discharged the lis pendens.
In November 2006, Thurber negotiated a lease-purchase agreement with James Wilson. The transaction provided Thurber would convey the Ocean City property to Wilson for $1,800,000, then lease it for one year, with a repurchase option at a later date. It does not appear the $1,800,000 purchase price changed hands. Rather, the transaction was financed by two mortgages, one for $1,260,000, which was subsequently acquired by defendant Bank of America, and another for $180,000, subsequently acquired by defendant CitiMortgage. From the remaining proceeds, Thurber received $325,000, from which he deposited $295,000 into plaintiff's bank account on December 15, 2006.
As a result of this transaction, the debts due Countrywide and ICC were satisfied, and the debts due defendants Bank of America and CitiMortgage were secured in first and second position, respectively. Defendant First American provided title insurance for this transaction.
Plaintiff again filed for divorce on March 21, 2008. A default judgment was entered on March 9, 2009. The equitable distribution of the Ocean City property was not finalized, but held to abide this litigation.
Plaintiff filed this action on October 31, 2008. Costa and First American moved for summary judgment in June 2009 and July 2009, respectively. Defendants each asserted plaintiff's claims were barred by equitable doctrines of estoppel, waiver, laches, unclean hands, lack of duty, and, as to Costa, ratification.
The named defendants were: Coulter James Thurber III; Theodore M. Costa; Senate Title Co., Inc.; Conestoga Title Insurance Company; Maria D. Fean; Congress Title Corporation; Fidelity National Title Insurance Company; SJB Holdings, LLC; James B. Wilson; Cathie L. Stull; Woodbury Title Agency, LLC a/k/a, Woodbury Title Group; Efthemios Velahos; First American Title Insurance Company; Bank of America, N.A., Assignee of Select Mortgage Corporation; ICC; and three fictitious parties.
On August 17, 2009, the assigned motion judge granted summary judgment on each motion, issuing separate oral opinions. As to Costa, the judge held:
[Plaintiff] knew of the forgery. She knew of the mortgages. She knew everything that took place within a year after the proceeding. She did nothing. She rested on her laurels and allows another mortgage, another mortgage, another mortgage, until we get up to where finally this guy Wilson buys the property. I don't know what he paid for it, $1.8. I doubt it, from what I read in the other papers. But because she knew of it, she did nothing to correct the situation, I find that she waived her rights to — at this particular point. She also ratified the actions of her husband by doing nothing. She knew of it, she did nothing, and that she allowed it to go forward.
Addressing First American, the judge stated:
[A]t this point in time, in the history of the case, I find that based upon her actions, she was now estopped to claim any interest in the property in question. She did nothing when she could have done something and didn't do anything except say, my husband said he was going to take care of it. And I guess her
husband never took care of it because here we are.
. . . .
But again, we have the other divorce decree with the lis pendens and that she discharged all of those things, and, therefore, she ratified what her husband did, as far as it relates to the property in question and the forging on the original deed, which goes back to Mr. Costa's case.
Plaintiff reached an agreement with some of the remaining defendants. With others, she voluntarily dismissed her claims without prejudice and with the reservation that if unsuccessful on appeal of the summary judgment orders, she could reopen her suit. On January 31, 2012, a different judge granted plaintiff default judgment against Thurber and others after determining plaintiff was the "sole fee simple absolute titleholder" of the property, and awarded her $2,025,095.10 in damages. She then appealed from the grant of summary judgment to Costa and First American.
Actual damages suffered were found as $675,031.70, which were trebled pursuant to N.J.S.A. 56:8-19 of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -195.
We note this order granted plaintiff quiet title to the property along with the substantial money judgment. No party has argued whether this precludes additional recovery, making the matter moot.
We concluded the appeal was interlocutory because plaintiff's reservation of the right to reinstate allowed the litigation to continue. Accordingly, we dismissed the appeal. See Thurber v. Thurber, No. A-1960-12T4 (App. Div. Feb. 6, 2014), slip op. at 10. The matter was remanded to the trial court and after additional motion practice, the action was dismissed as to all defendants. This appeal followed.
II.
An appellate court reviews an order granting summary judgment in accordance with the same standard as the motion judge. Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015). The facts must be construed in a light most favorable to the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). "It [is] not the court's function to weigh the evidence and determine the outcome but only to decide if a material dispute of fact existed." Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000).
Like the trial judge, we review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact, keeping in mind "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). Summary judgment must be granted "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." Ibid.
"With the factual record construed in accordance with Rule 4:46-2(c), 'the court's task is to determine whether a rational factfinder could resolve the alleged disputed issue in favor of the non-moving party[.]'" Globe Motor Co. v. Igdalev, 225 N.J. 469, 481 (2016) (quoting Perez v. Prof'lly Green, LLC, 215 N.J. 388, 405-06 (2013)). Accordingly, if no genuinely disputed fact exists, we "decide whether the trial court's ruling on the law was correct," W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), a review which is not deferential. See Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 197 (App. Div. 2004) ("Where there are no disputed material facts, the determination of charitable immunity is a question of law for the court to decide."). "When deciding a purely legal issue, review is de novo." Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (quoting Fair Share Hous. Ctr., Inc. v. N.J. State League of Muns., 207 N.J. 489, 493-94 n.1 (2011)).
III.
Challenging the grant of summary judgment to Costa and First American, plaintiff combines several arguments in a single point heading maintaining summary judgment must be vacated. We will identify the separate issues and review them seriatim.
First, plaintiff maintains the judge failed to afford her all reasonable factual inferences and, rather than applying the law to those facts, erroneously made factual findings. Despite her suggestion of materially disputed facts, plaintiff challenges only one single fact, that is, the statement she "did nothing after discovering in August 2004[,] the fraudulent transaction of August 2003." Plaintiff does not explain why the judge's finding was erroneous or should not have been considered. Moreover, she does not identify countervailing evidence showing the challenged fact was sufficiently disputed.
Plaintiff learned of the forged deed shortly after it was written in 2004. She filed a complaint for divorce and a lis pendens to thwart disposition of the property. At that time, she secured Costa's certification confirming Thurber's actions and unmistakably knew a deed was filed, which purported to transfer her interest in the Ocean City property. Also, undisputed is the fact plaintiff dismissed the litigation, which challenged Thurber's actions, released the lis pendens, and took no steps to correct the record.
Because plaintiff offers no arguments to support her claim of counterveiling facts, we consider the matter waived. Gormley v. Wood-El, 218 N.J. 72, 95 n. 8 (2014) (stating when an issue is not briefed, it is deemed waived). See also R. 2:6-2.
Second, plaintiff presents several legal arguments, asserting the judge incorrectly applied the law. Plaintiff argues a forged deed cannot pass good title; therefore, she had no obligation to act and Thurber's use of a forgery is inoperative as a matter of law. From this she concludes, "the mortgage liens of [Bank of America] and [CitiMortgage] must be discharged of record." She offers no legal authority to support the latter pronouncement.
Generally, a forged deed is deemed void and a nullity. Sonderman v. Remington Constr. Co., 127 N.J. 96, 115 (1992) (Stein, J., concurring). Despite this general rule, a person such as plaintiff wronged by a forgery may engage in a course of conduct that bars her from obtaining redress.
The judge's findings, although muddled, first invoked waiver as an equitable defense to plaintiff's suit. "Waiver, under New Jersey law, involves the intentional relinquishment of a known right, and thus it must be shown that the party charged with the waiver knew of his or her legal rights and deliberately intended to relinquish them." Shebar v. Sanya Bus. Sys. Corp., 111 N.J. 276, 291 (1988). "The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference." Knorr v. Smeal, 178 N.J. 169, 177 (2003).
"The party waiving a known right must do so clearly, unequivocally, and decisively." Country Chevrolet, Inc. v. Twp. of N. Brunswick Planning Bd., 190 N.J. Super. 376, 380 (App. Div. 1983). Often times, "[q]uestions of waiver, therefore, are usually questions of intent, which are factual determinations that should not be made on a motion for summary judgment." Estate of Cohen v. Booth Computers, 421 N.J. Super. 134, 149 (App. Div. 2011).
Here, it is undisputed plaintiff became aware of the forged deed. She obtained all facts supporting Thurber's fraud through Costa. In what can only be described as an attempt to enforce her rights, she filed an order to show cause, complaint and a lis pendens, seeking to prevent diminishment of her interest in the property. Therefore, both the knowledge element of her claim and her legal rights to enforce the claim are unequivocally proven.
Additional facts supporting plaintiff's knowledge include her receipt of loan proceeds and a check she issued to Countrywide for a mortgage payment.
Plaintiff, in an apparent reconciliation with Thurber, dismissed her suit and later released the lis pendens. Her brief simply suggests, without elaboration, "there is a question whether plaintiff voluntarily and intentionally waived her rights to the property and her damages." R. 2:6-2. Although plaintiff presents no factual support directed to an alleged lack of intention to waive, for the sake of our review, we will assume this is a jury question. Nevertheless, other equitable defenses thwart her suit. We turn to ratification.
"Ratification is the affirmance by a person of a prior act[,] which did not bind him but which was done, or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Thermo Contracting Corp. v. Bank of N.J., 69 N.J. 352, 361 (1976) (quoting Restatement (Second) of Agency § 82 (1957)).
Ratification requires intent to ratify plus full knowledge of all the material facts. Ratification may be express or implied, and intent may be inferred from the failure to repudiate an unauthorized act, from inaction, or from conduct on the part of the principal[,] which is inconsistent with any other position than intent to adopt the act.
[Ibid. (citations omitted).]
Interestingly, the Court in Thermo Contracting cited with approval and relied upon Rakestraw v. Rodrigues, 500 P.2d 1401 (Cal. 1972), a case where a husband forged a deed to property owned by his wife. Thermo Contracting, supra, 69 N.J. at 363. The proceeds check was payable to the husband and the wife and she endorsed the document. Rakestraw, supra, 500 P.2d at 1403. When she learned of the forgeries, the wife consulted counsel, who advised her to assert her rights. Id. at 1403-04. However, the wife did not follow counsel's legal advice and sought no remedy for more than three years when her marriage failed. Id. at 1404. The reviewing court found the wife benefited from the transaction, elected not to revoke it, and adopted the transaction as her own. Id. at 1406.
The facts in this matter similarly support ratification. The record shows plaintiff had full knowledge of Thurber's fraudulent conduct. She knew the deed was recorded, suggesting to innocent third-parties Thurber owned the Ocean City property. She sought legal advice and even initiated steps to enforce her rights. Plaintiff's explanation of why she chose to terminate the litigation makes no difference because she later withdrew those efforts. She also admitted when foreclosure notices arrived, she "let [Thurber] handle those things." Plaintiff received proceeds from some loan transactions and, as Costa stated, confirmed she named Thurber her attorney-in-fact to allow him to participate in another loan transaction.
We understand the judge's opinion to conclude: one, who knows a deed transferring her ownership in property has been filed, but declines to repudiate that conduct and also acts to later approve the conduct and benefits from same, has ratified the conduct and loses the right to challenge the forgery. See Thermo Contracting, supra, 69 N.J. at 363-64. We concur with this conclusion.
Here, no genuine issue of underlying fact was offered, "even recognizing, as we do, that ordinarily conclusory facts as well as underlying operative facts, if reasonably disputable, should be tried rather than determined by summary judgment or by judgment as a matter of law." Ibid. Accordingly, the facts of record support ratification and warrant granting summary judgment. R. 4:46-2.
Plaintiff's claim she "continued to protest when she discovered the additional fraudulent transactions" is not supported by record citations and, based upon our review, belied by the summary judgment record. --------
Plaintiff next asserts the judge misapplied the doctrine of equitable estoppel. We disagree.
"Estoppel is an equitable doctrine, founded in the fundamental duty of fair dealing imposed by law." Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999). Estoppel is invoked in "the interests of justice, morality and common fairness." Palatine I v. Planning Bd., 133 N.J. 546, 560 (1993) (quoting Gruber v. Mayor of Raritan Twp., 39 N.J. 1, 13 (1962)). The concept is designed to prevent injustice by not sanctioning a party's repudiation of a course of action, on which another party relied to his or her detriment. Mattia v. Northern Ins. Co. of N.Y., 35 N.J. Super. 503, 510 (App. Div. 1955). Unlike waiver, estoppel requires reliance by another. Country Chevrolet, supra, 190 N.J. Super. at 380. In short, to establish equitable estoppel, a party must show another engaged in conduct, either intentionally or under circumstances that induced reliance and, relying on that conduct, the person acted or changed a position to his or her detriment. Miller v. Miller, 97 N.J. 154, 163 (1984).
Plaintiff suggests she did not mislead others, making estoppel inapplicable. This is not entirely correct. Plaintiff did engage in affirmative acts as well as inaction, which played a role in perpetrating Thurber's continued conduct.
We have repeatedly noted plaintiff had full knowledge of the fraudulently filed deed. She withdrew her lis pendens, which would have provided third-parties with notice there was a title dispute. Costa also stated she executed a power of attorney, granting Thurber the right as her attorney-in-fact for the specific purpose of engaging in transactions regarding the Ocean City property. We conclude plaintiff's actions and active silence demonstrates an intent to mislead others, estopping her from now contesting the subsequent encumbrances and title transfer Thurber conducted. See Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 163 (App. Div. 1960) ("[O]ne who knowingly and silently permits another to spend money on real estate improvements under a belief of title [is] estopped later [from] assert[ing] paramount title.") (citing Bridgewater v. Ocean City Ass'n, 85 N.J. Eq. 379 (N.J. Ch. 1915).
Plaintiff also argues the judge incorrectly applied the doctrine of avoidable consequences, which addresses proximate cause and damages. Relying on Ostrowski v. Azzara, 111 N.J. 429, 438 (1988), plaintiff maintains the doctrine of avoidable consequences is a factor to be considered after a legal wrong has been committed because the doctrine addresses the degree to which a plaintiff's actions after suffering a tort or breach may diminish recovery. Id. at 437-38.
Although we reject the judge's reference to the doctrine of avoidable consequences when granting summary judgment, we nevertheless conclude this inadvertent statement was harmless and does not alter our determination summary judgment was appropriately granted. The facts are not disputed; as we have rejected as unfounded plaintiff's claims to the contrary. Further, plaintiff's acts ratified Thurber's repeated use of the fraudulent deed, from which she benefited.
In light of our determination, we need not address plaintiff's allegations of professional negligence against Costa, who inappropriately prepared the deed and accepted the imposter's acknowledgement, without verifying her identity. R. 2:11-3(c)(1)(E).
Turning to the allegations against First American, plaintiff contends First American, individually, "is liable for the defalcation of its closing agents Woodbury, Stull and Velahos" in the 2006 sale-leaseback transaction, arguments not specifically addressed by the trial judge. Plaintiff contends First American is liable to her because it created the appearance of apparent authority of its agents in conducting closing, and placed its agents in a position to commit a fraud by allowing them to control the closing funds.
Notably, even though the trial judge granted summary judgment for Costa and First American, he denied Woodbury and Velahos's motions for summary judgment, which suggests plaintiff's factual assertions sufficiently provided evidence Woodbury and Velahos participated in fraud. On appeal, plaintiff maintains Woodbury and Velahos were participants in a "foreclosure rescue scam," and paid "kickbacks" to various parties, to her detriment. Plaintiff's proofs did not show Woodbury and Velahos's conduct occurred as agents for First American. Accordingly, we reject plaintiff's suggested application of liability upon the title company by making a claim under its contract with its insured because title company employees improperly appropriate funds. See Clients Sec. Fund for the Bar of N.J. v. Sec. Title & Guar. Co., 134 N.J. 358 (1993); Sears Mortgage Corp. v. Rose, 134 N.J. 326 (1993).
"'A title insurance policy is a contract that protects a landowner against loss caused by defective title to the land.'" N.J. Lawyers' Fund, supra, 203 N.J. at 217 (quoting Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72, 82 (2008). Individuals who are not "named insureds" under the policy cannot recover. Shotmeyer, supra, 195 N.J. at 87. There is no authority presented allowing a seller or non-party to the real estate transaction to recover against a buyer's title insurer, using theories of agency or apparent authority. We decline to expansively read Sears to create such liability. The claims here are intentional torts, making this authority relying on the terms of the contract inapposite. Accordingly, plaintiff has no claim against First American.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION