J & M SCHRAGGER, LLC VS. PENNINGTON AFRICAN CEMETERY ASSOCIATION, INC. (C-000053-16, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3951-17T2

J & M SCHRAGGER, LLC,

Plaintiff-Respondent,

v.

PENNINGTON AFRICAN

CEMETERY ASSOCIATION, INC.,

Defendant-Appellant,

and

SUSAN A. WITCHER and

ANGELA WITCHER,

Defendants.

______________________________

Argued May 20, 2019 – Decided July11, 2019

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey,

Chancery Division, Mercer County, Docket No. C-

000053-16.

Dafney Dubuisson Stokes argued the cause for

appellant (Wong Fleming, PC, attorneys; Dafney

Dubuisson Stokes, on the briefs).

Bruce M. Schragger argued the cause for respondent

(Schragger, Schragger & Lavine, PC, attorneys; Bruce

M. Schragger, on the brief).

PER CURIAM

Plaintiff J & M Schragger, LLC, the contract purchaser of certain property

(the property) in Pennington, intended to subdivide the parcel and construct a

new house behind the existing house already on the lot. Defendant Pennington

African Cemetery Association, Inc. (PACA), owned a "flag lot," see American

Dream at Marlboro, LLC v. Planning Board of Marlboro, 209 N.J. 161, 164

(2012) (describing flag lot configuration), that bordered one side and the rear of

the property. Access to PACA's historic cemetery, and to the proposed newly

created lot, was over a narrow strip of land on the flag lot. Believing it had

negotiated an access easement agreement with PACA, plaintiff consummated its

purchase of the property and circulated the formal proposed easement agreement

for execution. When PACA refused, plaintiff filed suit seeking, among other

remedies, specific performance of the easement grant.

Both sides moved for summary judgment following discovery. In a

comprehensive oral decision, Judge Mary C. Jacobson concluded there was

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"implied authority for [PACA's real estate attorney, Gary] Backinoff to enter

into the agreement." She also concluded, "there [we]re aspects of apparent

authority here as well[,]" because plaintiff "relied on the communications

between . . . Backinoff and [its] attorney and moved forward" with the purchase.

The judge's September 13, 2017 order granted plaintiff partial summary

judgment enforcing the easement agreement and denied PACA's cross-motion.

The order further provided that "[i]f an easement agreement is executed . . . by

October 13, 2017, [p]laintiff has agreed to dismiss its claims for damages." 1

PACA did not execute the agreement, and plaintiff moved for summary

judgment as to damages and to enforce its rights under the September 2017

order, and defendant sought summary judgment on the issue of damages. After

the parties consented to dismiss certain counts of plaintiff's complaint, Judge

Jacobson denied plaintiff's claim for compensatory damages and entered the

March 23, 2018 order granting plaintiff final judgment in the form of specific

1

Defendant's notice of appeal does not include this order. Ordinarily, "it is

only the judgments or orders . . . designated in the notice of appeal which are

subject to the appeal process and review." Pressler & Verniero, Current N.J.

Court Rules, cmt. 6.1 on R. 2:5-1 (2019). Nonetheless, because the March 23,

2018 order was premised on the earlier order, "we will address the propriety of

the earlier order, particularly since [plaintiff] has not argued against our ruling

on its validity." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super.

455, 459 (App. Div. 2008).

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performance. The order required PACA to execute the easement agreement by

a certain date and provided that plaintiff could enforce the order by seeking

"appointment of a court-appointed party to execute the easement agreement" if

PACA continued to refuse. Although PACA continued in its refusal, Judge

Jacobson subsequently denied plaintiff's motion in aid of litigant's rights and

granted PACA's motion for a stay pending appeal.

Before us, PACA contends the judge erred in concluding Backinoff had

implied authority or apparent authority to bind PACA. It also argues that

because it lacked knowledge of the existence of any easement agreement,

actions it took were not ratifications of the agreement. Having considered these

arguments in light of the record and applicable legal principles, we affirm.

I.

We confine our review to the motion record before Judge Jacobson when

she first granted specific performance, see Ji v. Palmer, 333 N.J. Super. 451,

463-64 (App. Div. 2000), beginning with the evidence supporting plaintiff's

motion for partial summary judgment.

In an affidavit, plaintiff's predecessors in title asserted their family had

owned the property for more than sixty years, during which they continually

used the proposed easement area to access the rear of their property, and

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maintained the area by cutting grass, removing snow and replacing stones over

the years.

Plaintiff furnished a March 31, 2016 email from one of PACA's trustees,

Angela Witcher (Angela), 2 to Backinoff, which was an apparent "[r]ecap of [a]

counter[-]offer" containing certain conditions for the grant of the easement. 3

The next day, Backinoff sent an email to plaintiff's counsel stating, "I have

general agreement on terms for easement agreement." He reiterated the specifics

in Angela's email and requested a draft agreement to present to PACA's full

membership. Plaintiff's counsel responded by email on April 4, stating plaintiff

agreed to the terms, modifying only the terms of payment to PACA. Backinoff

forwarded the email to Angela, asking if he was authorized to agree.

The record fails to reveal any response from Angela, but, the same day,

Backinoff sent plaintiff's counsel a letter "[i]n response to [the] request for an

easement." The April 4 letter said in relevant part, "five members of [PACA]

met and . . . agreed to provide an easement subject to" certain conditions. Those

2

Angela and another trustee, Susan A. Witcher (Susan), were originally

defendants in the lawsuit, but were dismissed from the litigation. To avoid

confusion, we use their first names throughout the balance of the opinion. We

intend no disrespect by this informality.

3

If there was an original offer from plaintiff, it is not in the record.

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conditions reflected the terms in Angela's email and Backinoff's earlier email to

plaintiff's counsel, specifically: the parties' agreement concerning a precise

description of the easement and the grant of a reciprocal easement permitting

PACA to use a "shed and turn around" on plaintiff's property; plaintiff agreed

that no more than two homes would have access to the easement; plaintiff agreed

to perpetually maintain the easement and plant and maintain a tree buffer; and

plaintiff would pay $2500 to PACA, with an additional $2500 if plaintiff

received subdivision approval. In accordance with instructions, plaintiff

countersigned the letter and returned it to Backinoff with the required $1000

deposit.

Backinoff forwarded the letter to Angela the next day. On April 11,

Angela sent Backinoff an email that indicated all members of PACA were in

agreement, save one member whom she had not yet contacted. She also stated

that she "should be able to give final confirmation shortly." On April 15,

Backinoff sent plaintiff's check to Angela, with a copy of the countersigned

April 4 letter. One week later, Backinoff advised plaintiff's counsel that PACA

had approved stone pavers to be used for the drive and requested a proposed

easement with metes and bounds description.

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Susan appeared at the May 11, 2016 meeting of the local planning board.

The limited portion of the transcript in the record reveals she told the board

PACA was ready to move forward with the grant of an easement, but Backinoff

had advised PACA to "look into who will be signing the actual paperwork."

Plaintiff secured subdivision approval conditioned on the execution of a formal

easement agreement between plaintiff and PACA.

Following approval of the board's memorializing resolution in June,

plaintiff's counsel forwarded a formal deed of easement with metes and bounds

description in accordance with a survey, including within the reciprocal

easement grant to PACA. On July 7, Angela sent a letter to plaintiff's principals

indicating PACA would not execute the easement because of concerns regarding

the driveway's classification as a "private road," which meant Pennington would

not enforce motor vehicle laws if, for example, residents of the proposed second

house blocked access to the cemetery.

In opposition to plaintiff's motion and in support of its cross-motion,

PACA furnished its retainer agreement with Backinoff, in which he

acknowledged there was "some question as to the authority of [PACA] to enter

contracts and transfer property[,]" and suggested putting all of its members on

notice of the proposed easement. Additionally, in a May 15 email to Backinoff,

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Angela referenced "[t]he public meeting" — presumably before the planning

board — as "a real eye-opener[,]" and said PACA "deeply regret[ted] . . . the[]

negotiations ha[d] gotten [so] far." Claiming PACA felt "rushed[,]" Angela said

it was "no longer comfortable with signing an easement."

Backinoff's response was telling. Agreeing to discuss the issue at an

upcoming meeting with Angela, he wrote in an email reply: "Please realize . . .

you made an agreement with your new neighbor, through me, which is arguably

enforceable. You certainly are entitled to review and negotiate precise design

of driveway and easement but you are arguably not entitled to simply negate

your prior agreement." At his deposition, Backinoff explained his use of the

word "arguably" by saying, "I wasn't sure . . . there was a . . . legally binding

. . . agreement . . . ."

Additionally, PACA supplied excerpts from Angela's and Susan's

depositions. Angela denied authorizing Backinoff to send the April 4 letter, and

Susan asserted Backinoff "had no permission to sign any paperwork for

[PACA,]" but neither testified that they ever told Backinoff not to proceed.

Susan acknowledged that they decided against granting an easement after

meeting "with the zoning officer," and "gather[ing] up more information about

what an easement would mean."

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II.

We review de novo the grant of summary judgment applying the same

standard as the motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v.

Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment is

appropriate if the record demonstrates "there is no genuine issue as to any

material fact challenged and . . . the moving party is entitled to a judgment . . .

as a matter of law." Ibid. (quoting R. 4:46-2(c)). To determine whether there is

a genuine issue of material fact, we consider "whether the competent evidential

materials presented, when viewed in the light most favorable to the non-moving

party, are sufficient to permit a rational fact finder to resolve the alleged

disputed issue in favor of the non-moving party." Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995)). We owe no deference to the trial court's

legal analysis. The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade,

LLC, 230 N.J. 427, 442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

An attorney may not act on behalf of a client without consent unless

specifically authorized. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475 (App.

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Div. 1997) (citing City of Jersey City v. Roosevelt Stadium Marina, Inc., 210

N.J. Super. 315, 327 (App. Div. 1986)). This is no different from the general

rule that "an agent may only bind his principal for such acts that 'are within his

actual or apparent authority.'" N.J. Lawyers' Fund for Client Prot. v. Stewart

Title Guar. Co., 203 N.J. 208, 220 (2010) (quoting Carlson v. Hannah, 6 N.J.

202, 212 (1951)). "Actual authority occurs 'when, at the time of taking action

that has legal consequences for the principal, the agent reasonably believes, in

accordance with the principal's manifestations to the agent, that the principal

wishes the agent so to act.'" Ibid. (quoting Restatement (Third) of Agency:

Actual Authority § 2.01 (Am. Law Inst. 2006)). As stated in Amatuzzo, absent

express authorization,

[n]egotiations of an attorney are not binding on the

client unless . . . the client's voluntary act has placed

the attorney in a situation wherein a person of ordinary

prudence would be justified in presuming that the

attorney had authority to enter into a settlement, not just

negotiations, on behalf of the client.

[305 N.J. Super. at 475 (citing U.S. Plywood Corp. v.

Neidlinger, 41 N.J. 66, 74 (1963)).]

Further, we have held implied actual authority exists when "an agent is

authorized to do what he [or she] may reasonably infer 'the principal desires him

[or her] to do' in light 'of the principal's manifestations' and 'facts as he [or she]

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knows or should know them' when he [or she] acts." Lampley v. Davis Mach.

Corp., 219 N.J. Super. 540, 548-49 (App. Div. 1987) (quoting Lewis v. Travelers

Ins. Co., 51 N.J. 244, 251 (1968)).

The scope of the agent's implied authority is limited to only what he may

reasonably draw from the principal's words and conduct, and the facts then

known to the agent. Kisselbach v. Cty. of Camden, 271 N.J. Super. 558, 565

(App. Div. 1994) (citing Lampley, 219 N.J. Super. at 548-49); see also Newark

Branch, NAACP v. Twp. of W. Orange, 786 F. Supp. 408, 424 (D.N.J. 1992)

("The focus is on the agent's reasonable perception of the principal's

manifestations toward him."). "And if the authorization is ambiguous, the agent

has authority to act in accordance with what he reasonably believes to be the

wish of the principal even though it is contrary to the principal's actual intent. "

Lewis, 51 N.J. at 251 (citing Restatement (Second) of Agency: Interpretation

of Ambiguous Instructions § 44 (Am. Law Inst. 1958)). Importantly, "[t]he

principal's unexpressed reservations and qualifications do not reduce the agent's

actual authority." Restatement (Third) of Agency: Creation of Actual Authority

§ 3.01 cmt. b (Am. Law Inst. 2006).

"Apparent authority arises 'when a third party reasonably believes the

actor has authority to act on behalf of the principal and that belief is traceable

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to the principal's manifestations.'" Stewart Title, 203 N.J. at 220 (quoting

Restatement (Third) of Agency: Apparent Authority § 2.03 (Am. Law Inst.

2006)). "The doctrine of apparent authority 'focuses on the reasonable

expectations of third parties with whom an agent deals.'" Ibid. (quoting

Restatement (Third) of Agency: Agent Acts with Apparent Authority § 7.08

cmt. b (Am. Law Inst. 2006)). In either case, "direct control of principal over

agent is not absolutely necessary; a court must examine the totality of the

circumstances to determine whether an agency relationship existed even though

the principal did not have direct control over the agent." Sears Mortg. Corp. v.

Rose, 134 N.J. 326, 338 (1993) (citing 2 C.J.S. Agency § 36 (1972)).

PACA focuses on Backinoff's deposition testimony, arguing he did not

conclusively believe he had legally bound PACA through the April 4 letter,

never received express authorization from PACA to agree to the terms, and was

unsure about the association's ability to convey the easement in the first place.

It argues the judge placed insufficient weight on Backinoff's testimony and

undue significance on the retainer agreement, which, Judge Jacobson noted,

expressed PACA's retention was primarily limited to Backinoff's negotiation of

the easement.

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However, viewing the totality of the circumstances in the motion record,

we agree with Judge Jacobson's essential assessment and conclude that the

evidence was "so one-sided that [plaintiff] must prevail as a matter of law."

Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986)). Angela's March 31 email to Backinoff set forth PACA's

"counter[-]offer" regarding the easement. Those terms found their way into

Backinoff's email to plaintiff's counsel the following day, who in turn agreed to

the terms in an email on April 4. In short, the course of conduct to that point

led Backinoff to reasonably believe that he had secured the express terms PACA

sought, and that he possessed actual authority to formalize the agreement.

Judge Jacobson gave appropriate significant weight to this course of

conduct, culminating in the April 4 letter from Backinoff to plaintiff's counsel,

which the judge concluded bound PACA to the agreement. The letter set forth

all the terms PACA demanded that Backinoff negotiate on its behalf, and

required that plaintiff's principals countersign the letter and forward t he agreed

upon deposit. Plaintiff immediately complied.

Backinoff sent the letter to Angela the following day, and, when she

responded by email six days later, she did not question or renounce what had

occurred. Instead, she told Backinoff that all members of PACA, save one, had

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agreed, and she expected to reach that person and "give final confirmation

shortly." Thereafter, PACA reaffirmed its intention to proceed with the grant of

the easement, by approving plaintiff's selection of pavement for the eas ement

area and indicating its intention to grant the easement before the planning board.

In short, no reasonable fact finder could conclude that Backinoff lacked

the implied actual authority to act on PACA's behalf and agree to the terms of

the easement grant. See R. 4:46-2(c). Judge Jacobson properly granted

summary judgment on the specific performance count of the complaint, and

subsequently final judgment in plaintiff's favor.

Based on our reasoning, we need not consider whether Backinoff

possessed the apparent authority to bind PACA to the easement grant.

Affirmed.

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