Opinion
DOCKET NO. A-4543-10T4
02-27-2012
ERNEST N. JOHNSON, Plaintiff-Appellant, v. BOROUGH OF LAWNSIDE and ALLEN S. ZELLER, ESQUIRE, Defendants-Respondents.
Joseph D. Dinoto, attorney for appellant. George J. Botcheos, attorney for respondent Borough of Lawnside. Zeller & Wieliczko, attorneys for respondent Allen S. Zeller, Esquire (Dean R. Wittman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Alvarez and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2393-09.
Joseph D. Dinoto, attorney for appellant.
George J. Botcheos, attorney for respondent Borough of Lawnside.
Zeller & Wieliczko, attorneys for respondent Allen S. Zeller, Esquire (Dean R. Wittman, on the brief). PER CURIAM
This matter arises out of a public auction of property in the Borough of Lawnside (Borough). Plaintiff Ernest Johnson appeals from the Law Division's January 21, 2011 summary judgment dismissal of his complaint against the Borough and its municipal attorney, Allen Zeller, seeking damages for being denied the right to purchase property at the public land sale as the highest bidder, and from a March 18, 2011 order denying his motion for reconsideration. We affirm.
The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) are as follows. Pursuant to N.J.S.A. 40A:12-13, the Borough adopted a resolution on April 25, 2007, authorizing a public land sale to take place on May 14, 2007, and setting forth the conditions of sale. One of the tracts being auctioned is located at 62 Oak Avenue and, as with the other two tracts up for sale, subject to the minimum bid process. All persons electing to bid on the tracts were deemed to have accepted the terms of the bidding process as set forth in the resolution, which directed that the property was to be sold to the highest bidder present at the auction. The successful bidder was required to "immediately" pay 10% of the bid price, by way of cash, cashier's check or certified check to the Borough as a condition of sale. Thus, condition No. 6 of the resolution provided:
Immediately upon the tracts being struck off to them, the purchasers shall sign their names and addresses to an Agreement of Sale, incorporating the Resolution and Conditions by reference and shall pay ten (10%) percent of the minimum bid price in cash or by [cashier's] or certified check payable to the Borough of Lawnside. In the event the
purchaser neglects or refuses to sign the Agreement of Sale, the Administrator shall sign the Agreement of Sale as their agent.
Pursuant to the terms of the resolution, the Borough maintained the right to withdraw a tract from sale for "any reason whatsoever" prior to the time the tract was struck off to the successful bidder. The Borough further maintained the right to "reject any and all bids" prior to their confirmation and, further, to re-expose a tract for sale in the event a successful bidder failed to comply with the conditions of the land sale.
Plaintiff attended the public land sale on May 14, 2007 intending to purchase the property at 62 Oak Avenue, as did another bidder, Joseph Bruno. At the outset of the auction, an announcement concerning the sale was made and the specific terms contained in the resolution were read verbatim to the public. Plaintiff placed several bids on the property, competing back-and-forth with Bruno. Ultimately, plaintiff outbid Bruno, placing a high bid of $81,000 for the property.
After bidding was closed, in accordance with the resolution, plaintiff was requested by the municipal solicitor, Zeller, to tender 10% of his bid, totaling $8,100, by way of cash or certified funds. Plaintiff then informed Zeller and the Borough Administrator, Jessie Harris, that he did not have the required down payment with him and requested their permission to leave to obtain a certified check for that amount from his bank in Haddonfield. According to plaintiff, both Zeller and Harris allowed him to do so. Upon leaving the premises, he heard Bruno "screaming, hollering and carrying on."
Upon his return one hour later with a certified check in the amount of $8,100 in hand, plaintiff was informed that his bid would not be confirmed because he was not able to immediately tender the required 10% of the bid price by way of cash, cashier's check or certified check, as expressly required by the resolution. Rather, the sale of the property was terminated and later rescheduled for June 20, 2007. Thereafter, the public sale was duly noticed and held on the scheduled date. Plaintiff did not attend the auction and the property was sold to Bruno, the lone bidder on that date.
Plaintiff did not seek to either enjoin the relisting of the property or compel the Borough to convey the property to him. Instead, two years later, on May 12, 2009, he filed a four-count complaint for damages against the Borough and Zeller, alleging racial discrimination, N.J.S.A. 10:5-1 to -49; "fundamentally unfair government action"; a "public employee wrongfully enforcing the law"; and "discriminatory refusal to sell to the plaintiff," 42 U.S.C.A. §§ 1981, 1982, 1983 and 1985. Plaintiff later amended the complaint to add a fifth count, claiming a statutory violation for "failure of both defendants to abide by the requirements for sale of real property by a municipality," N.J.S.A. 40A:12-13. Both defendants answered and Zeller counterclaimed.
Following discovery, defendants filed motions for summary judgment, which the Law Division judge granted, reasoning in part:
Zeller's counterclaim was dismissed via a consent order.
I think it was a mistake to allow Mr. Johnson to leave the building to get a check. And it may be that Mr. Bruno's unhappiness ultimately led Mr. Zeller to change his mind, but that's not racial discrimination, that's just -- that's life, essentially.As noted, plaintiff's motion for reconsideration was denied. On appeal, plaintiff raises the following issues:
. . . .
[T]he discrimination claims, there's just simply no proof. And all the proof that there is, is exactly the opposite.
. . . .
[B]ecause of Mr. Bruno's protestations, a decision was made then to strictly comply with the requirement that the funds be immediately available. There may be some cases where a municipality is equitably estopped from going through with the sale, even though it's in violation of the resolution. But this case is not a good case for its application since the only detrimental reliance by [plaintiff] was that he left the building, went to the bank and got a certified check.
Had [plaintiff] actually to his detriment done things because he was told by Mr. Zeller -- according to [plaintiff] -- that he could leave the municipal building, and get the check, then there would be a stronger case for equitable estoppel. But that's not this case.
. . . .
[T]he cornerstone of equitable estoppel is detrimental reliance and there's -- I don't see any detrimental reliance. Mr. Johnson may have detrimental reliance, if he sold his own house to get the $8,100 -- 10 percent. Is now living on the street -- gives the check and now they pull the rug out from underneath him. He says, wait a second I just sold my house because you told me you'd take my 10 percent. His detrimental reliance was that [he] had to go to his bank and come back. That's usually not the type of detrimental reliance that's considered sufficient.
I. THE PUBLIC LAND SALE HELD ON MAY 14, 2007 WAS CONDUCTED IMPROPERLY BY THE RESPONDENTS BOROUGH OF LAWNSIDE AND MUNICIPAL ATTORNEY, ALLEN S. ZELLER, ESQUIRE, IN THAT THE SALE WAS NOT CONDUCTED IN ACCORDANCE WITH THE LAWNSIDE BOROUGH RESOLUTION AUTHORIZING THE PUBLIC LAND SALE AND THE APPLICABLE PROVISIONS OF NEW JERSEY LAW.We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We, therefore, affirm substantially for the reasons stated by the motion judge in his oral opinion of January 21, 2011. Affirmed.
II. APPELLANT ERNEST N. JOHNSON WAS IMPROPERLY DENIED HIS RIGHT TO PURCHASE MUNICIPAL PROPERTY AT A PUBLIC LAND SALE AFTER BEING THE HIGHEST BIDDER FOR SAME.
III. ERRORS IN PROCEDURE WERE MADE IN HANDLING THE OBJECTIONS OF APPELLANT ERNEST N. JOHNSON WITH REGARD TO THE RESULTS OF THE PUBLIC LAND SALE ON MAY 14, 2007.
IV. THE LEARNED TRIAL JUDGE ERRED IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT OF RESPONDENTS BOROUGH OF LAWNSIDE AND ALLEN S. ZELLER, ESQUIRE.
V. APPELLANT ERNEST N. JOHNSON WAS DENIED HIS RIGHTS UNDER NEW JERSEY LAW BY THE WAY THAT HIS OBJECTIONS WERE HANDLED TO THE PUBLIC LAND SALE ON MAY 14, 2007 BY THE FOLLOWING:
(A) RESPONDENTS BOROUGH OF LAWNSIDE AND ALLEN S. ZELLER, ESQUIRE.
(B) BY THE LEARNED TRIAL JUDGE WHO HAD PRIOR BUSINESS DEALINGS WITH RESPONDENT ALLEN S. ZELLER, ESQUIRE (NO DECISION WAS MADE BY THIS LEARNED TRIAL JUDGE WHO RECUSED HIMSELF AFTER HAVING THE CASE FOR APPROXIMATELY THREE MONTHS WHEN ALLEGATIONS OF CONTRADICTORY AND INCONSISTENT STATEMENTS WERE MADE AGAINST RESPONDENT ZELLER BY APPELLANT JOHNSON); AND
(C) BY THE LEARNED TRIAL JUDGE IN FAILING TO RENDER A WRITTEN OPINION AS TO THE GRANTING OF RESPONDENTS' RESPECTIVE MOTIONS FOR SUMMARY JUDGMENT AND DENYING THE MOTION OF THE APPELLANT FOR RECONSIDERATION (THIS ISSUE WAS RAISED BY THE APPELLANT IN A RECENT MOTION FILED WITH THIS HONORABLE COURT AND REQUESTS FOR SAME WERE PROPERLY MADE BY THE APPELLANT IN THE LOWER COURT).
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION