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Thursday, July 10, 2008

Joseph Burke, et al. v. Sea Point Realtors, et al.

5-30-08 A-5652-06T1

Plaintiffs sought to purchase real property from the guardian of an incapacitated person that had been marketed for the guardian by defendant Sea Point Realty. Ultimately, the guardian sought approval to sell the property to defendants Thomas and Patricia Meyer without clearly disclosing to the Probate Part, in an action brought pursuant to R. 4:94-1 to -7, that the Meyers were the principals of Sea Point Realty. The guardian also did not give notice of the action to plaintiffs or any of the other disappointed offerors. The probate judge approved the sale.

Plaintiffs subsequently brought this action in the Law Division, alleging fraud and other similar claims and seeking damages. Summary judgment was entered in favor of the Meyers, Sea Point and the guardian, based upon, among other things, a determination that the probate proceedings were conclusive on the legitimacy of the sale to the Meyers. The court reversed, concluding that the order approving the transaction was not entitled to preclusive effect because the guardian had not
clearly indicated to the Probate Part that the purchasers were the principals of the real estate broker and because plaintiffs had not been given notice of the probate proceedings. As to the latter point, the court recommended consideration by the Civil
Practice Rules Committee of the rules regarding the persons entitled to notice of a suit brought pursuant to R. 4:94-1 to - 7.