Opinion
DOCKET NO. A-2850-14T3
02-06-2017
VALLEY NATIONAL BANK, Plaintiff-Respondent/Cross-Appellant, v. KEVIN FISTER and ADELE FISTER, husband and wife, Defendants-Appellants/Cross-Respondents.
Kevin Fister, appellant/cross-respondent, argued the cause telephonically pro se. Jay Bently Bohn argued the cause for respondent/cross-appellant (Schiller & Pittenger, attorneys; Paul C. Pawlowski, of counsel; Mr. Bohn, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Messano and Suter. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3179-13. Kevin Fister, appellant/cross-respondent, argued the cause telephonically pro se. Jay Bently Bohn argued the cause for respondent/cross-appellant (Schiller & Pittenger, attorneys; Paul C. Pawlowski, of counsel; Mr. Bohn, on the brief). PER CURIAM
Kevin and Adele Fister (defendants) appeal a December 18, 2014 order granting summary judgment to plaintiff Valley National Bank (plaintiff), which entered a $323,305.05 deficiency judgment against defendants arising from plaintiff's foreclosure of defendants' Monmouth Beach property (the property). We affirm the order.
Neither party disputes that in 2007, defendants executed a note in the principal amount of $464,000 and a mortgage on their property in Monmouth Beach. It is also undisputed that they subsequently defaulted on the mortgage loan and that plaintiff obtained a final judgment of foreclosure in 2012 for $618,852.50 plus costs and interest.
Defendants unsuccessfully sought plaintiff's approval to sell the property to resolve any monetary deficiency arising from the foreclosure. In 2011, defendants proposed to sell the property for $375,000, but this was rejected by plaintiff based on its appraisal of the property and defendants' other assets. In 2012, defendants proposed to sell the property for $497,777.77 in an all cash offer, but this also was rejected based on plaintiff's contention that defendants had assets exceeding one million dollars that would fully satisfy any deficiency judgment.
In May 2013, plaintiff purchased the property at sheriff's sale for $100. Plaintiff's appraisal at the time reflected a fair market value for the property of $335,000. Later, the property was sold to a third party for $337,500.
Following notice as required by N.J.S.A. 2A:50-6, plaintiff filed a deficiency action in August 2013 against defendants, seeking a judgment for $323,305.05. This figure was based on the amount of the final judgment of foreclosure, but included a credit of $335,000 for the property's fair market value based on plaintiff's appraisal.
When discovery closed in the deficiency action, plaintiff filed for summary judgment. Although there was oral argument on the motion in September 2014, defendants did not provide a transcript for our review. The trial court reserved on the motion, to allow further submissions from the parties and to permit the case to be arbitrated. See R. 4:21A-1(a)(3).
The arbitrator's report of September 17, 2014 awarded judgment to plaintiff in the amount of $162,305.05, after providing defendants with two credits, the first credit reflecting the price for which the property sold after the sheriff's sale, and the second credit reflecting defendants' proposed short sale that plaintiff had "refused without explanation." Plaintiff filed a motion to confirm the award. R. 4:21A-6(b)(3). Although unopposed, another judge, not the judge hearing the summary judgment motion, denied confirmation without prejudice.
The matter was dismissed on December 4, 2014 by a court-generated notice.
The summary judgment motion was decided after arbitration was completed. In a comprehensive oral decision on December 18, 2014, Judge Katie A. Gummer granted summary judgment, entering a deficiency judgment of $323,305.05 in favor of plaintiff and against defendants. Judge Gummer found that, although either party could have presented evidence of the property's fair market value for her consideration in determining the amount of the deficiency, "[d]efendants have failed to present an appraisal of the property and have not presented sufficient evidence to show a different fair market value of the property other than that which has been submitted by plaintiff." Finding the need for expert testimony in determining fair market value, the judge determined that defendants only had presented Mr. Fister's certification that there were "potential buyers." The judge concluded that "[t]he only evidence of fair market value of the property is that submitted by plaintiff."
The judge rejected defendants' contention that plaintiff failed to mitigate its damages by rejecting defendant's proposals to sell the property for less than the amount of the claimed deficiency. Finding with respect to each of the proposed contracts that "plaintiff was asked effectively to give up its rights to any amount over and above the short sale to be collected," the judge concluded there was no "evidence in [the] law that mitigation means the party who has been damaged as a result of [a] breach of contract has to give up its rights to damages as a result of the breach."
Defendants appeal the December 18, 2014 summary judgment order, but frame the issue on appeal as whether the judges "commit[ted] reversible error by denying the entry of an order confirming the arbitration award and by entering summary judgment in an amount twice that of a pre-existing arbitration award where neither party requested a trial de novo of the arbitrations award?" Thus, we begin by clarifying the proper scope of this appeal.
Defendants have appealed the December order granting summary judgment, not the November order denying confirmation of the arbitration award. "It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b. 138 N.J. 41 (1994)). See Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002). Thus, the only issue before this court is whether summary judgment was properly granted in favor of plaintiff and not whether there was error in denying confirmation of the arbitration award.
Plaintiff filed a protective cross-appeal of the November 7, 2014 order that denied confirmation of the arbitration award without prejudice, and of the December 4, 2014 court generated notice of dismissal. Due to our disposition in favor of plaintiff, we need not address plaintiff's cross-appeal and we dismiss it. See Bondi v. Citigroup, 423 N.J. Super. 377, 387 (App. Div. 2011) (not addressing protective cross-appeal because of disposition of the appeal), certif. denied, 210 N.J. 478 (2012); Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 314-15 (App. Div. 2003) (dismissing protective cross-appeal because of decision on appeal). --------
With respect to the summary judgment order, we review that order using the same standards that govern the trial court, and "view the evidence in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citations omitted). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (citation omitted)). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.
We discern no error by Judge Gummer in concluding that defendants failed to dispute plaintiff's appraisal of the property's fair market value. "Expert testimony is generally required to determine the fair market value of real property . . . ." Pansini Custom Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 143 (App. Div. 2009). See also Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993) (cautioning judges against fixing the market value of real estate without expert appraisal); Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 336 (1998) (holding that proof of adverse effect on adjacent property values will "generally require qualified expert testimony"). "Ultimately, the fact-finder . . . must weigh and evaluate the expert's opinions, including their credibility, . . . in reaching a reasoned, just and factually supported conclusion." Pansini, supra, 407 N.J. Super. at 144.
Defendants presented no appraisal of the property to inform the court as to its fair market value, but merely presented unverified copies of incomplete proposed contracts of sale purportedly signed by just one party. Because the only appraisal of the property was presented by plaintiff, defendants failed to create a genuine dispute about its fair market value.
As for the contention that plaintiff failed to mitigate damages, we agree with Judge Gummer that each sale proposal submitted by defendants would have required plaintiff to compromise the amount of its deficiency claim. A party seeking damages for breach of contract has the general duty to mitigate its damages. Sommer v. Kridel, 74 N.J. 446, 454 n.3 (1977) (citations omitted); see also Sean Wood, L.L.C. v. Hegarty Grp., Inc., 422 N.J. Super. 500, 519 (App. Div. 2011) ("[P]arties injured by a breach of contract have a common law obligation to take reasonable steps to mitigate their damages.") (citing McDonald v. Mianecki, 79 N.J. 275, 299 (1979))). The non-breaching party is "entitled to the amount of damages . . . which . . . will put that party in the same position it would have been in if the breaching party had performed the contract in accordance with its terms." Magnet Resources, Inc. v. Summit MRI, Inc., 318 N.J. Super. 275, 292-93 (App. Div. 1998). We agree with Judge Gummer that plaintiff was not required to compromise its debt to mitigate its damages. We also agree that summary judgment was appropriate here in light of the undisputed record.
Affirmed on appeal; dismissed on the cross-appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION