Grand Teton Developers, LLC v. United Development of America, LLC

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4072-23 GRAND TETON DEVELOPERS, LLC, Plaintiff-Respondent, v. UNITED DEVELOPMENT OF AMERICA, LLC, Defendant/Third-Party Plaintiff-Appellant, v. MAX SPANN REAL ESTATE & AUCTION CO. and MAXIMILLIAN M. SPANN, JR.,1 Third-Party Defendants- Respondents. _______________________________ Argued March 10, 2026 – Decided October 2, 2026 1 Improperly pled as Maxx Spann Real Estate & Auction Co. and Maximillion M. Span, Jr. The record reflects that the correct names are Max Spann Real Estate & Auction Co. and Maximillian M. Spann, Jr. Before Judges Gooden Brown and Rose. On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-000130-21. Anthony X. Arturi argued the cause for appellant (Anthony X. Arturi, LLC, attorney; Anthony X. Arturi, on the briefs). Peter R. Bray argued the cause for respondent Grand Teton Developers, LLC (Bray & Bray, LLC, attorneys; Peter R. Bray, on the brief). Michael J. Raudebaugh (Clausen Miller PC) of the Florida bar, admitted pro hac vice, argued the cause for respondents Max Spann Real Estate & Auction Co. and Maximillian M. Spann, Jr. (Clausen Miller PC and Michael J. Raudebaugh, attorneys; Andrew S. Turkish and Michael J. Raudebaugh, on the brief). The opinion of the court was delivered by GOODEN BROWN, P.J.A.D. Defendant/third-party plaintiff United Development of America, LLC (United) appeals from Chancery Division orders granting summary judgment in favor of plaintiff Grand Teton Developers, LLC (Grand Teton) and third-party defendant auctioneers Max Spann Real Estate & Auction Co. (Max Spann), and owner, Maximillian M. Spann, Jr. (Spann). The underlying dispute arose when United entered into an agreement with Max Spann to auction real property it owned in Paterson. Max Spann conducted an online auction for the property, A-4072-23 2 and Grand Teton was the winning bidder. However, United refused to sign the contract of sale conveying the property to Grand Teton, alleging Max Spann breached the auction agreement. The motion judge ultimately granted summary judgment to Grand Teton, awarding specific performance and compelling United to execute the documents necessary to convey the property to Grand Teton. The judge also granted summary judgment to defendant auctioneers, dismissing with prejudice a third- party complaint United had filed against them and awarding a commission for the sale as well as attorneys' fees. On appeal, United challenges the summary judgment awards and other rulings. Having considered the record and applicable law, we affirm. I. We glean these facts from the record. United owned property located on Ryle Avenue in Paterson (the property) since 2013. United's managing member, Bashar Sabbagh, was experienced in the real estate business. On September 21, 2021, United and Max Spann entered into a real estate auction agreement concerning the property. Under the agreement, Max Spann had "the exclusive right to sell or exchange the . . . property from this date and to conduct a [p]ublic [a]uction on or about November of 2021." The agreement specified it "may not A-4072-23 3 be terminated by the Seller prior to the Termination Date," defined as 120 days after the auction. Significantly, the auction agreement set a published reserve price of $1.7 million. At his deposition, Spann testified the reserve price was based on information he received from Sabbagh, "that this would be an enticingly low enough number that it would . . . create a lot of excitement and hopefully go up from there." Spann believed the property was worth around two million dollars but acknowledged Sabbagh hoped the auction would yield three or four million. At his deposition, Sabbagh estimated the property was worth around nine million dollars in 2021 based on his assessment of the real estate market at that time. Nevertheless, he agreed to the $1.7 million reserve price because that was the price recommended by Spann. Sabbagh testified setting the reserve price relied on the fact that Paterson's Planning Board had approved the property for commercial and residential development. In a June 6, 2018 resolution, the Board had approved the mixed-use development of approximately 10,000 square feet of commercial space and ninety residential units on the property. The resolution did not contain an expiration date. The auction agreement also specified that United agreed to sell the property "pursuant to the terms of the Contract of Sale as prepared by the Seller's A-4072-23 4 attorney." At his deposition, Spann testified Max Spann provided sellers with a "template" contract of sale that the sellers could revise or disregard and have "their attorney[s] write an entirely new contract." Spann explained that after the auction concluded, both the seller and the winning bidder would sign the pre - prepared contract of sale once the buyer's name and the sale price were known. At his deposition, Sabbagh confirmed it was his understanding that the seller's attorney was responsible for drafting the contract of sale. The auction agreement also stated Max Spann was responsible for marketing and advertising the auction and provided it "may postpone or advance the date of the [a]uction with the consent of the Seller." It agreed "to use its best efforts to obtain the highest available bid . . . and to endeavor to have the high bidder submit a written offer in the form of Contract of Sale created and approved by the Seller's attorney conforming to the highest bid." In exchange for conducting the auction, Max Spann would receive ten percent of the "final bid price" as a commission. The auction agreement contained a merger clause specifying that no other representations had been made by either party and the agreement constituted "the sole and complete understanding" between them. Any notice required under its terms was to be "in writing and sent by registered or certified mail." A-4072-23 5 Finally, the agreement specified that "[i]n the event of any litigation between the parties," the prevailing party would be reimbursed for legal fees and costs. After executing the agreement, Max Spann began marketing the auction by placing advertisements in local newspapers and various websites as well as sending out email blasts, press releases, and brochures. The advertisements declared the property was approved for mixed-use development. Max Spann also prepared a property information package containing the property specifications, tax and zoning information, a contract of sale, deed, environmental information, and the planning board resolution granting development approval. On September 24, 2021, Spann sent a text message to Sabbagh stating, "We are going for December 1 for the auction date," to which Sabbagh responded, "Excellent." At his deposition, Sabbagh initially testified he believed the auction would take place in November 2021 per the auction agreement. However, he later acknowledged receiving the text message from Spann advising of the December 1 auction date. On November 9, 2021, Max Spann sent Romi Saleh, United's attorney, an email attaching a template contract of sale. In the email, which copied Sabbagh, Max Spann referenced the upcoming December 1 auction dated and asked Saleh A-4072-23 6 to "review the attached contract of sale and send back any changes/comments." Max Spann also requested Saleh to fill in the missing information in the contract pertaining to escrow and closing. On November 15, 2021, Max Spann requested "an update on the status of the approved contract of sale." Three days later, on November 18, 2021, copying Sabbagh, Saleh responded: I have reviewed the contract of sale and my revisions are in red. They will be visible if you view the document using the review tab/function, where they will be highlighted in red for you. I am also attaching a clean copy that incorporates my suggestions but without red font. Please advise. There is no record of Max Spann's response to Saleh's revisions. At his deposition, Sabbagh acknowledged seeing Saleh's edits to the contract of sale but stated he did not approve them. Pursuant to the terms of the proposed contract of sale, the winning bidder would pay an initial deposit, to be deposited in the seller's attorney's trust account, with the closing to occur within forty-five days of the execution of the contract. The contract of sale also specified that "[t]h[e p]roperty [was] being sold '[as is].'" Additionally, an attorney review clause stated the contract was "reviewed and prepared by [s]eller's counsel" and both the seller and the winning A-4072-23 7 bidder agreed "that the three (3) day attorney review period does not apply to this transaction." At his deposition, Spann testified at some point during the marketing campaign, he became aware that Paterson's Planning Board approvals had expired. Spann said he called Sabbagh, who admitted he was aware the approvals had expired. After admonishing Sabbagh for withholding that information, Spann told Sabbagh there were three options: 1) if there were no bids that met the reserve price then United would not have to sell the property; 2) if there were bids above the reserve price then that would be the best case scenario for United; or 3) if they received a bid for the reserve price, then United would have to sell the property for $1.7 million. According to Spann, Sabbagh agreed to proceed with the auction. Spann denied that Sabbagh ever told him to stop or delay the auction. As a result, Max Spann revised the property information package to state: "The Subject Property was previously approved for 10,000± sf of commercial space and 90± residential units. This approval has expired and must either be renewed or altered." At his deposition, Sabbagh acknowledged he received a call from Spann alerting him about the expired approvals but claimed he was unaware of the expiration beforehand. According to Sabbagh, the lack of approval "would A-4072-23 8 reduce the market value" of the property because the approvals provided for a lower tax rate. Sabbagh testified when he learned about the expiration of the approvals from Spann, he told him to "freeze everything, do not auction the property until we rectify this problem." Sabbagh stated he later learned Max Spann proceeded with the auction without his authorization. At his deposition, Spann testified that in order to bid, a prospective buyer had to submit a $40,000 deposit. Abdul Hamdan, a member of Grand Teton, submitted a $40,000 deposit and on November 30, 2021, Max Spann approved him as a bidder for the auction. According to Max Spann, sixty-three individuals pre-registered to bid on the property but only three submitted the $40,000 deposit. The record is unclear as to when the auction opened. At his deposition, Spann testified the auction began on November 29, 2021, at 10:00 a.m. 2 In contrast, Sabbagh testified the auction opened on December 1, 2021, at around 9:00 a.m., and concluded two hours later despite Spann's assurance that the auction would be open "for a week or ten days." The advertisements in the 2 He later stated the auction started on November 29, 2021, at 9:00 a.m. A-4072-23 9 record indicate the auction would conclude on December 1, 2021, at 11:00 a.m. but do not list a start time. 3 On December 1, 2021, at 11:08 a.m., Max Spann emailed Hamdan advising that he was the winning bidder at $1.7 million, in addition to the required ten percent buyer's premium of $170,000. The email advised Hamdan the balance of the ten percent deposit totaling $147,0004 was due by the end of the day. Shortly thereafter, Grand Teton wired the funds to Max Spann. According to Spann, "immediately at the conclusion of the auction," he called Sabbagh and informed him that the winning bid was for the reserve price. Sabbagh responded he was "not going to sign" the contract of sale. When Spann reminded him there was "an agreement" in place, Sabbagh allegedly replied, "don't worry, I'll talk to my attorney. I will defend you, we'll get out of this." Spann allegedly retorted, "I will not be party to this, that is not the way I do business." 3 When the judge tried to clarify the timing of the auction at the hearing on Grand Teton's order to show cause, Grand Teton's counsel responded that there was an advertisement stating the auction opened on November 29, 2021. That advertisement is not in the record. 4 The ten percent deposit totaled $187,000 but since Grand Teton had already provided a $40,000 deposit to bid, the balance was $147,000. A-4072-23 10 Hamdan executed the "Contract for Sale of Real Estate" on behalf of Grand Teton on December 2, 2021. The contract contained the revisions made by United's counsel. The following day, Max Spann received an email notification from DocuSign, indicating that Sabbagh had opened and viewed the contract, but had not signed it. Sabbagh claimed at his deposition he first became aware that the auction had proceeded on December 3, 2021, when he received a call from Hamdan who told him he was buying the property. On December 6, 2021, Max Spann's attorney sent Saleh a letter, copying Grand Teton. In the letter, counsel stated: [Sabbagh] has advised my client that he will not execute the Contract of Sale with Grand Teton. Please be advised that their continued failure to execute the Contract would constitute a breach of their obligations vis-à-vis Grand Teton and would also constitute a breach of their obligations under the Real Estate Auction Agreement that he executed with Max Spann. On December 22, 2021, Grand Teton filed a verified complaint and applied for an order to show cause (OTSC) seeking temporary restraints against United. In the complaint, Grand Teton sought specific performance compelling United to convey ownership of the property, injunctive relief, or, in the alternative, damages for United's breach of contract. United opposed Grand Teton's request for injunctive relief, alleging the auction was deficient because A-4072-23 11 Max Spann breached the auction agreement. On December 27, 2021, Judge Randal C. Chiocca entered an OTSC, setting a hearing for February 2, 2022, and temporarily enjoining United from selling, transferring, or encumbering the property. The judge also ordered United to file responsive pleadings by January 19, 2022. After obtaining an extension of time for the submission of its pleadings, United filed an answer, counterclaim, and third-party complaint on February 1, 2022. In its counterclaim, United sought compensatory damages against Grand Teton. In its seven-count third-party complaint, United named Max Spann and Spann as third-party defendants. Counts one through three alleged Max Spann breached the auction agreement. Count four alleged Max Spann "erroneously advertised" the property and thereby "defrauded" United. Count five alleged Max Spann made misrepresentations in violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -204. Counts six and seven alleged Spann proceeded with the auction despite instructions from United to suspend it and made misrepresentations in violation of the CFA. On February 2, 2022, Judge Chiocca entered an order continuing the restraints enjoining United from selling, transferring, or encumbering the property pending further order of the court. On April 4, 2022, the judge denied A-4072-23 12 United's motion for reconsideration. Thereafter, United filed a motion to recuse Judge Chiocca from the case and for a change of venue. In a supporting certification, Sabbagh alleged Judge Chiocca had a conflict of interest because he and Grand Teton's counsel had been partners in the same law firm prior to his appointment to the bench. Sabbagh attached a copy of a complaint he had filed with the Advisory Committee on Judicial Conduct against Judge Chiocca. 5 Although the record does not contain a transcript of the motion hearing, on May 20, 2022, Judge Chiocca entered an order granting United's motion for recusal and transferring the matter for handling to Judge Frank Covello, the designated conflict judge for Chancery Division cases. The parties subsequently appeared before Assignment Judge Ernest M. Caposela who denied United's motion for change of venue on June 14, 2022. In denying the motion, Judge Caposela explained that Judge Chiocca had recused himself and United had not provided any reason why Judge Covello would not be fair and impartial. However, Judge Caposela added that if counsel felt "there 5 On August 9, 2022, the Advisory Committee on Judicial Conduct issued a letter dismissing the grievance against Judge Chiocca and finding no basis to conclude the judge had engaged in judicial misconduct or displayed partiality in favor of Grand Teton or its counsel. A-4072-23 13 [was] a substantial doubt that [Judge Covello could] be fair" at any point during the litigation, then he could raise the issue again. On June 17, 2022, Max Spann filed an answer to United's third-party complaint, and asserted a counterclaim for breach of contract seeking payment of its commission. Spann also filed a contesting answer to United's third-party complaint without a counterclaim. Thereafter, Judge Covello repeatedly extended the discovery deadline and ultimately scheduled trial for November 13, 2023. The scheduling order noted "THERE WILL BE NO FURTHER ADJOURNMENTS OR EXTENSIONS OF TIME." On July 6, 2023, Grand Teton filed a motion for summary judgment returnable August 4, 2023, seeking specific performance and compelling United "to execute all documents necessary for the consummation of the conveyance ." On July 24, 2023, United's counsel sent the judge a letter advising that he was "in the process of preparing a cross-motion for summary judgment" and requesting an extension of time to file opposition so that the summary judgment motion and cross-motion could be "heard simultaneously." A subsequent letter from United's counsel indicates that the judge granted the adjournment request and assigned September 8, 2023, as the new return date. On September 7, 2023, at 7:22 p.m., United's counsel again wrote to the judge, requesting another A-4072-23 14 adjournment to file opposition to Grand Teton's motion due to "personal issues, illness and not having support staff." A few hours later, at 2:12 a.m. on September 8, 2023, United's counsel filed a cross-motion seeking summary judgment in its favor and the dismissal of Grand Teton's complaint with prejudice. The accompanying brief stated it was both in support of United's cross-motion and in opposition to Grand Teton's motion for summary judgment. On the same date, September 8, 2023, Max Spann's and Spann's insurance defense counsel filed a motion for summary judgment seeking dismissal of United's third-party complaint. Subsequently, on September 26, 2023, Max Spann's counterclaim counsel filed a motion seeking summary judgment on Max Spann's counterclaim for commission and requesting attorneys' fees. United opposed the motions. During a pre-trial conference conducted on October 3, 2023, Judge Covello noted Grand Teton's summary judgment motion was deemed unopposed because United's opposition was untimely filed "on the return date." The following day, United's counsel wrote to the judge requesting "the [c]ourt consider [its] opposition . . . . [n]otwithstanding the late filing" because "[p]rejudice will result to [United] if [its] opposition is not considered." The judge held another conference to clarify the order in which the motions would A-4072-23 15 be adjudicated. The judge stated he would consider Grand Teton's motion first because it was filed first and reiterated that United's opposition "was untimely" and would not be considered. The judge added United's cross-motion for summary judgment would be heard next along with Max Spann's and Spann's motions for summary judgment. In an order and accompanying written statement of reasons entered October 5, 2023, the judge granted Grand Teton's motion for summary judgment, "compelling the conveyance of title to the . . . property . . . in accordance with, and pursuant to, the Sales Contract" and ordering United "to execute all documents necessary for the consummation of the conveyance." After recounting the governing legal principles, the judge declared "there [were] no issues of material fact that would preclude entry of summary judgment." In rejecting United's argument that it was not liable to Grand Teton because Max Spann breached the auction agreement, the judge reasoned "there [was] no question that Max[] Spann was retained as the auctioneer pursuant to a contract with . . . United and had actual authority to conduct the auction[,]" and "[a]ny breaches of that agreement by Max[] Spann were not known to [Grand Teton], an innocent purchaser at the auction." A-4072-23 16 The judge found Grand Teton was "ready, willing, and able to perform and complete" the sale and "[a]ny irregularities in the auction—that would constitute a breach of the auction contract between [United] and Max[] Spann— [did] not invalidate the auction itself, but could give rise to a cause of action by [United] against Max[] Spann," which "[was] exactly what ha[d] occurred here." Although the judge considered the motion unopposed, he stated he was "aware" of United's "claims and defenses" that Max Spann breached the auction agreement with United and "as a result, there could not be a valid and enforceable contract to convey title to the property to [Grand Teton]." Nevertheless, the judge reiterated his rejection of those arguments "because Max Spann acted as [United's] agent, and as such, when the auction sale was conducted and the bid was presented for the required $1.7 million, an enforceable agreement to sell the property arose." The judge concluded: [Grand Teton] is entitled to specific performance, which would include the execution of the contract of sale and conveyance by deed of the property by . . . United to [Grand Teton]. [United] set out to sell its property by auction. The property was auctioned, and [Grand Teton] was the successful bidder. [United] accomplished what it set out to do – sell its property. The claims of [United] for breaches by Max[] Spann are claims for money damages that are part of this action and certainly survive this motion. A-4072-23 17 On October 6, 2023, the judge heard argument on Max Spann's and Spann's motions for summary judgment seeking to dismiss the third-party complaint filed by United. Following oral argument, the judge entered orders granting Max Spann's and Spann's motions and denying United's cross-motion for summary judgment as "moot." In an oral opinion, first, the judge rejected United's argument that Max Spann and Spann breached the auction agreement by moving the auction date to December 1 without United's consent. The judge found the auction agreement stated the auction would take place "on or about November" 2021, but did not set a "firm date." Next, the judge rejected United's argument that Max Spann and Spann misrepresented "whether there were approvals" for the property in "[t]he advertising materials," finding instead that they revised the advertisements to indicate the approvals had expired. Turning to United's argument there was no finalized sale contract prior to the auction, the judge found although "the actual contract was not prepared word for word by [United], it was adopted by them" because United's attorney reviewed the contract, made changes to it, and those changes were ultimately incorporated into the contract signed by Grand Teton. The judge also noted United had not submitted an expert report establishing that Max Spann had not conducted the auction appropriately. Further, United had not provided an expert A-4072-23 18 report on damages and thus could not sustain their breach of contract or CFA claims against Max Spann or Spann. Thus, the judge concluded Max Spann was entitled to the payment of the buyer's premium and attorneys' fees in accordance with the express provisions of the auction agreement. Both counterclaim and insurance counsel submitted attorneys' fee applications, including copies of the respective firms' itemized bills. Insurance counsel requested an award of $25,000, representing Max Spann's deductible under its policy, and counterclaim counsel requested an award of $16,240 plus costs. United opposed the fee application. On July 16, 2024, the judge entered an amended summary judgment order that included judgment in favor of Max Spann against United for the payment of a buyer's premium of $170,000 and an award of $15,417.55 in attorney's fees. To support the fee award, the judge explained in an accompanying written statement of reasons: Pursuant to paragraph 14 of the Auction Agreement, [Max] Spann seeks a judgment for its costs and legal fees associated with the defense of the affirmative claims filed against it by United and with respect to prosecuting its [c]ounterclaim. The language of the Auction Agreement is clear and unambiguous that the prevailing party in any litigation between [Max] Spann and United shall be entitled to reimbursement from the non-prevailing party for all A-4072-23 19 costs and expenses, including legal fees incurred in connection with the litigation. Max[] Spann submitted a Certification of Services. It is the role of this court to determine the reasonableness of the fees and enter an award accordingly. After applying the governing legal principles and reviewing the itemized bills in detail, the judge modified the request and entered a reduced award. This appeal followed. On appeal, United argues: (1) there were genuine issues of material fact that precluded the entry of summary judgment; (2) Max Spann had no authority to proceed with the auction because United instructed it to suspend the auction; (3) it was entitled to rescind the auction agreement due to mutual mistake regarding the status of the property's approvals from the Planning Board; (4) there was no valid contract of sale in place prior to the auction; (5) Spann engaged in the unauthorized practice of law by drafting the sale contract; (6) the judge did not make sufficient findings when granting Grand Teton's request for specific performance; (7) the judge erred in refusing to consider its late opposition to Grand Teton's summary judgment motion; and (8) the assignment judge erred in denying its motion for a change of venue. A-4072-23 20 II. Our analysis begins with some established legal principles. "[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is well-settled. [I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. R. 4:46-2(c); see Brill, 142 N.J. at 540 . [Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016) (citations reformatted).] "An issue of material 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.'" Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Where there is no material fact in dispute, "we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting A-4072-23 21 & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). "We review issues of law de novo and accord no deference to the trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018). Turning to the cause of action at issue, To prevail on a claim that the terms of a contract were violated, a plaintiff must prove four elements: first, that the parties entered into a contract containing certain terms; second, that [the] plaintiff did what the contract required [the plaintiff] to do; third, that [the] defendant did not do what the contract required [the defendant] to do, defined as a breach of the contract; and fourth, that [the] defendant's breach, or failure to do what the contract required, caused a loss to the plaintiff. [Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016) (citations and quotation marks omitted; alterations in original omitted or not noted).] [Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 512 (2019).] A party asserting breach of contract must "prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Totaro, A-4072-23 22 Duffy, Cannova & Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1 , 14 (2007) (quoting Lane v. Oil Delivery Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)); see also Brach Eichler, Rosenberg & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 11 (App. Div. 2001) ("Conjecture and speculation cannot be used as a basis for damages"). Likewise, a party asserting a violation of the CFA must show an "ascertainable loss" as a result of the defendant's conduct. D'Agostino v. Maldonado, 216 N.J. 168, 184-85 (2013). Expert opinion is required where a factfinder lacks knowledge or experience to determine a fact at issue. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2.3 on N.J.R.E. 702 (2025-2026). "[I]t is a general rule that the construction of a contract is a question of law," Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011) (alteration in original) (quoting Jennings v. Pinto, 5 N.J. 562, 569-70 (1950)), and we review the trial court's interpretation of a contract de novo. Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595 , 612 (2020). It is well-settled that "[c]ourts enforce contracts 'based on the intent of the parties, the express terms of the contract, surrounding circumstances and the underlying purpose of the contract.'" Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014) (quoting Caruso v. Ravenswood Developers, Inc., 337 N.J. Super. 499, 506 (App. Div. 2001)). A reviewing court must consider contractual language "'in the context of the A-4072-23 23 circumstances' at the time of drafting and . . . apply 'a rational meaning in keeping with the expressed general purpose.'" Sachau v. Sachau, 206 N.J. 1, 5-6 (2011) (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)). "[I]f the contract into which the parties have entered is clear, then it must be enforced" as written. Maglies v. Est. of Guy, 193 N.J. 108, 143 (2007); accord Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960) ("Courts cannot make contracts for parties. They can only enforce the contracts which the parties themselves have made." (quoting Sellars v. Cont'l Life Ins. Co., 30 F.2d 42, 45 (4th Cir. 1929))). Where an agreement is ambiguous, "courts will consider the parties' practical construction of the contract as evidence of their intention and as controlling weight in determining a contract's interpretation." Cnty. of Morris v. Fauver, 153 N.J. 80, 103 (1998). [Matter of County of Atlantic, 230 N.J. 237, 254-55 (2017).] An ambiguity exists if it appears that a term is "susceptible to at least two reasonable alternative interpretations." Chubb Custom Ins. Co. v. Prudential Ins. Co., 195 N.J. 231, 238 (2008). Yet, "[a] party that uses unambiguous terms in a contract cannot be relieved from the language simply because it had a secret, unexpressed intent that the language should have an interpretation contrary to the words' plain meaning." Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). If the court determines that a term is ambiguous, it may look to extrinsic evidence to aid its interpretation. Id. at 192 . A-4072-23 24 Here, Grand Teton sought specific performance to compel defendant to convey the property. Specific performance is a discretionary remedy that rests on equitable principles. Friendship Manor, Inc. v. Greiman, 244 N.J. Super. 104, 113 (App. Div. 1990). In cases involving a dispute over real property, "[t]here is a virtual presumption, because of the uniqueness of land and the consequent inadequacy of monetary damages, that specific performance is the buyer's appropriate remedy for the vendor's breach of the contract to convey." Ibid.; see also Pruitt v. Graziano, 215 N.J. Super. 330, 331 (App. Div. 1987) ("Presumptively, real property is unique and damages at law are an inadequate remedy for breach of a contract to sell it."). Still, the party seeking specific performance must be ready, willing, and able to consummate the transaction "as required by the contract on the date specified." Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 605 (App. Div. 2005); see also Stamato v. Agamie, 24 N.J. 309, 316 (1957) (noting that "the general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt, and eager to perform the contract on his part" (quoting Meidling v. Trefz, 48 N.J. Eq. 638, 644 (E. & A. 1891))). When determining whether to grant specific performance, a court must consider the parties' "conduct and situation[,]" "the clarity of the agreement A-4072-23 25 itself notwithstanding that it may be legally enforceable," "the impact of an order compelling performance" and "whether such an order [would be] harsh or oppressive to the defendant," or whether the plaintiff has alternative avenues for relief. Marioni, 374 N.J. Super. at 600 (quotations and citations omitted). [A]s a consequence of the remedy's equitable underpinnings, the party seeking specific performance "must stand in conscientious relation to his adversary; his conduct in the matter must have been fair, just and equitable, not sharp or aiming at unfair advantage." [Stehr v. Sawyer, 40 N.J. 352, 357 (1963)]. This weighing of equitable considerations must represent, in each case, a conscious attempt on the part of the court of equity to render complete justice to both parties regarding their contractual relationship. In short, a court of equity will often direct performance of such a contract because, when there is no excuse for the failure to perform, equity regards and treats as done what, in good conscience, ought to be done. Goodell v. Monroe, 87 N.J. Eq. 328, 335 (E. & A.1917). [Marioni, 374 N.J. Super. at 600-01 .] The parties' transaction involved an auction of real property. "An 'auction' is generally defined as a 'public sale of property to the highest bidder' that is 'ordinarily complete when the auctioneer so announces in a customary manner, as by pounding a hammer.'" Sullivan as Tr. of Sylvester L. Sullivan Grantor Retained Income Tr. v. Max Spann Real Estate & Auction Co., 251 N.J. 45 , 68- 69 (2022) (quoting Black's Law Dictionary 160-61 (11th ed. 2019)). An auction A-4072-23 26 with a reserve is one "in which the property will not be sold unless the highest bid exceeds a minimum price." Black's Law Dictionary 159 (12th ed. 2024). On the other hand, in an auction without reserve (i.e., where there is no minimum bid required), "the owner essentially becomes an offeror, and each successively higher bid creates a contingent contract, the highest bid creating an enforceable agreement." Panetta v. Equity One, Inc., 190 N.J. 307, 324-25 (2007) (quoting Black's Law Dictionary 140 (8th ed. 2004)). Buyers at an auction for real property are expected to be bound by their bids. Bassford v. Trico Mortg. Co., 273 N.J. Super. 379, 387 (Law. Div. 1993), aff'd, 273 N.J. Super. 228 (App. Div. 1994). In granting Grand Teton summary judgment, the judge relied on agency principles, finding that Max Spann was United's agent and authorized to bind United. "An agency relationship is created when one party consents to have another act on its behalf, with the principal controlling and directing the acts of the agent." Sears Mortg. Corp. v. Rose, 134 N.J. 326, 337 (1993); see also Restatement (Second) of Agency § 8 & cmt. a (A.L.I. 1958). Generally, an agent may only bind his principal for such acts that "are within his actual or apparent authority." Carlson v. Hannah, 6 N.J. 202, 212 (1951) (citation omitted). Actual authority occurs "when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance A-4072-23 27 with the principal's manifestations to the agent, that the principal wishes the agent so to act." [Restatement (Third) of Agency, § 2.01 (A.L.I. 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 to the principal's manifestations." Id. § 2.03. The doctrine of apparent authority "focuses on the reasonable expectations of third parties with whom an agent deals." Id. § 7.08 [cmt.] b. [New Jersey Lawyers' Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010).] Under New Jersey law, an auctioneer is the agent of a seller. See Jones v. Hackensack Auto Wreckers, Inc., 124 N.J.L. 289, 291 (1940); Schmidt v. Quinzel, 55 N.J. Eq. 792, 794 (1897). Further, an agent's actions will bind a principal where the principal allows the agent to assume apparent authority or where the principal holds the agent out to third parties as having apparent authority. Wilzig v. Sisselman, 209 N.J. Super. 25, 35-36 (App. Div. 1986). "Liability will be imposed upon the principal in cases involving apparent authority where the actions of a principal have misled a third party into believing that a relationship of authority existed and where the third party has relied upon this belief to his or her detriment." Rodriguez v. Hudson Cnty. Collision Co., 296 N.J. Super. 213, 221 (App.Div.1997). A-4072-23 28 Under the doctrine of apparent authority, the issue is "whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question." Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 497 (App. Div. 2003) (quoting Legge Indus. v. Joseph Kushner Hebrew Acad./JKHA, 333 N.J. Super. 537, 560 (App. Div. 2000)). "Thus, a conclusion that a party has acted with apparent authority must rest upon the actions of the principal, not the alleged agent," ibid., and a third party asserting that an agent has putative authority has the burden to show: (1) the alleged principal's conduct created "the appearance of authority[,]" as "it cannot be established" by the alleged agent's actions alone; (2) the third party "relied on the agent's apparent authority to act for [the] principal"; and (3) such "reliance was reasonable under the circumstances," Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 318 (App. Div. 1999) (quotations and citations omitted). See also Busciglio v. DellaFave, 366 N.J. Super. 135, 140 (App. Div. 2004) ("Apparent authority must be established clearly and convincingly by the actions of the principals, not of the alleged agent."). A-4072-23 29 Applying these principles, we are satisfied the judge correctly granted Grand Teton's summary judgment motion and properly ordered specific performance, compelling United to convey the property to Grand Teton. We agree there are no disputed material facts precluding summary judgment as a matter of law. United argues the judge misinterpreted Golfinopoulos v. Padula, 218 N.J. Super. 38 (App. Div. 1987), maintaining Max Spann was not authorized to act on United's behalf. Golfinopoulos involved the sale of real property at a closed-bid auction held by an attorney purportedly acting on behalf of the decedent-owner's sisters and a beneficiary. 218 N.J. Super. at 40-41 . Another attorney at the sisters' attorney's firm wrote to the beneficiary's attorney, proposing a sealed-bid auction for the property and enclosing a bid proposal. Id. at 42 . The beneficiary's attorney did not respond. Ibid. The sisters' attorney nevertheless issued the bid proposal specifying the date on which the bids were due and stated the contract would be awarded "to the highest responsible bidder." Ibid. The plaintiffs submitted the highest bid. Id. at 43 . However, the parties were unable to come to an agreement on the contract because the beneficiary would not sign the contract. Id. at 43-44 . The trial court granted summary judgment against the plaintiffs, finding there was "no contract" and "the bid was A-4072-23 30 merely an offer . . . ." Id. at 44 . We reversed, holding there was a factual issue as to whether the attorney had authority to act on behalf of the beneficiary. Id. at 44-45 . We also held advertising that a contract would go to the highest bidder "transformed" the sale to an auction without reserve and was essentially an offer by the sellers. Id. at 46 . Accordingly, when the bidder submitted a conforming bid, "a contract was then formed" provided that the attorney had authority to offer the property on the beneficiary's behalf. Ibid. We remanded for a plenary hearing to resolve the factual issue of whether the attorney was an authorized agent of the beneficiary. Id. at 48 .. This case is distinguishable from Golfinopoulos because it did not involve a closed-bid auction or an auction without reserve. Those differences aside, our holding in Golfinopoulos supports the proposition that if an authorized agent holds an auction, and a buyer submits a conforming bid, a binding contract is created between the seller and the buyer. Id. at 46 . Here, unlike Golfinopoulos, there was an agreement that conferred authority upon Max Spann to conduct the auction. Pursuant to the auction agreement, United gave Max Spann "the exclusive right to sell or exchange" the property and authorized it to advertise the auction to the public. A-4072-23 31 At his deposition, Sabbagh confirmed he was aware Max Spann was conducting the auction on December 1, 2021. United provided Max Spann with information about the property, including the development approvals which Max Spann used to publicly advertise the property for sale. Hamdan certified he received Max Spann's "promotional flyer," "spen[t] a considerable amount of time researching and conducting due diligence," and was aware the property had been previously approved for mixed-use development but the approval had expired. Nonetheless, Hamdan decided to bid on the property. Under the circumstances, it was reasonable for Grand Teton to believe Max Spann had at the very least apparent authority to auction the property on United's behalf. Thus, when Max Spann concluded the auction and deemed Grand Teton the winner, an enforceable contract arose between United and Grand Teton. The judge also correctly concluded Grand Teton was entitled to specific performance. Because real property was involved, money damages would have been an inadequate remedy. See Friendship Manor, 244 N.J. Super. at 113 . And, despite United's argument to the contrary, the judge considered the parties' circumstances and the equitable issues at play. As the judge noted, United had agreed, under the auction agreement, to sell the property at a minimum price of A-4072-23 32 $1.7 million and that is precisely what occurred. Furthermore, Grand Teton was ready, willing, and able to complete the sale. United maintains Sabbagh told Spann to postpone the auction until he could reinstate the property approvals. However, as the judge pointed out, there is no evidence Grand Teton had any knowledge of this alleged representation. Instead, Grand Teton was an innocent third party in the transaction. Cf. Schmidt, 55 N.J. Eq. at 794 (denying a buyer specific performance after an auction for real property because the buyer was aware at the time he entered into the agreement with the auctioneer that the property owner had revoked the auctioneer's authority to auction the property). Because the equities favored Grand Teton, we are convinced the judge correctly granted specific performance. United also argues it never approved the contract of sale signed by Grand Teton. This argument fails because a binding contract is created at the conclusion of an auction. See Sullivan, 251 N.J. at 70 ("Once the auction commences, the seller must accept the highest bid. Subject to any applicable contract defenses such as fraud, accident, unconscionability, or mistake, the parties' contract is ordinarily final and enforceable at the close of the auction, not at a later point in time."). Moreover, the undisputed facts show United's A-4072-23 33 attorney reviewed and approved the contract of sale which was ratified by United. "Ratification requires intent to ratify plus full knowledge of all the material facts." Thermo Contracting Corp. v. Bank of N.J., 69 N.J. 352, 361 (1976). "Ratification may be express or implied, and intent may be inferred from the failure to repudiate an unauthorized act," inaction, "or from conduct on the part of the principal which is inconsistent with any other position than intent to adopt the act." Ibid. Here, United approved the contract through its attorney, Saleh, who made revisions to the template contract sent by Max Spann. Sabbagh was copied on the contract and the revisions. Max Spann incorporated Saleh's edits into the final contract of sale that Grand Teton signed. We reject United's unpersuasive arguments to the contrary. United asserts the judge should have considered its opposition to Grand Teton's summary judgment motion. Rule 4:46-1 requires a party to serve and file a motion for summary judgment twenty-eight days before its return date. Oppositions to motions for summary judgment are due ten days before the return date. R. 4:46-1. Still, courts have broad discretion to consider untimely papers due to the preference for disposing of cases on the merits. Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n, 228 N.J. Super. 463, 467-68 (App. Div. 1988) ("It A-4072-23 34 is a mistaken exercise of judgment to close the courtroom doors to a litigant whose opposition papers are late but are in the court's hands before the return day for a motion which determines the meritorious outcome of a consequential lawsuit."). Nevertheless, a party's "dilatory conduct" in the defense of a summary judgment motion may be subject to sanctions. Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 303 (App. Div. 2009) Rule 4:46-2(b) requires opposition to a summary judgment motion to contain "a responding statement either admitting or disputing each of the facts in the movant's statement" with a corresponding citation to the record. If the opposition does not comply with this requirement, the movant's facts, as supported by the record, are deemed admitted. Ibid.; see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2 on R. 4:46-2 (2026). United acknowledged its opposition was untimely notwithstanding the fact it had previously been granted an adjournment. United's request for yet another adjournment was filed after hours, and the judge had no opportunity to consider the request. Although the judge deemed the motion unopposed, he considered United's "claims and defenses" in adjudicating the motion. United also failed to comply with the procedural requirements of Rule 4:46-2(b). Although United filed a statement of undisputed material facts, it provided no A-4072-23 35 citation to the record for the facts it contended were in dispute such as the fact that it instructed Max Spann not to go forward with the auction. Given these procedural anomalies, we affirm the judge's decision granting Grand Teton summary judgment. We do not believe the outcome was affected, particularly because the judge ultimately considered United's claims and defenses. We therefore discern no basis to intervene. We are also convinced based on our de novo review of the record that the judge correctly granted summary judgment dismissal of United's third-party complaint against Max Spann and Spann because United failed to establish a breach of the auction agreement or damages. United maintains Sabbagh instructed Spann to postpone the auction and reiterates the auction agreement required an approved contract of sale. Additionally, United contends it was entitled to rescind the auction agreement due to mutual mistake because both it and Max Spann believed the property approvals were in place when they entered into the agreement. The judge found no disputed material facts precluded summary judgment. Specifically, the judge found United had not shown the auction date was moved without its consent. Further, the judge found the advertisements were updated prior to the auction to reflect the lack of property approvals. The judge rejected A-4072-23 36 United's argument that it had not approved the contract of sale, noting that Saleh had reviewed and revised the contract with Sabbagh's knowledge and that Saleh's changes were incorporated into the final contract. The judge also noted United had not provided an expert report to show that Max Spann had not appropriately conducted the auction or to show that United had incurred any damages as a result of the alleged breach of contract. Accordingly, there was no evidence in the record for a factfinder to conclude the property was worth more than the $1.7 million that Grand Teton paid and no evidence that United incurred any damages. As for United's argument that Sabbagh instructed Spann to hold off on the auction, the agreement did not allow United to unilaterally move the auction date. Although the agreement contained a provision authorizing Max Spann to postpone or advance the auction, it did not provide the seller with the same right. Further, United provided no evidence, other than Sabbagh's self-serving testimony, that Max Spann or Spann consented to his request to postpone the auction date. See Vizzoni v. B.M.D., 459 N.J. Super. 554, 567 (App. Div. 2019) (noting that conclusory and self-serving assertions are insufficient to overcome a motion for summary judgment). A-4072-23 37 For the first time on appeal, United contends it was entitled to rescind the auction agreement based on the doctrine of mutual mistake. Generally, "[w]e will not consider an issue that is raised for the first time on appeal unless the issue pertains to the trial court's jurisdiction or concerns a matter of great public interest." Pfannenstein v. Surrey, 475 N.J. Super. 83 , 99 (App. Div. 2023). Since neither issue is implicated here, we decline to consider the argument. Likewise, we decline to consider United's argument that the auction agreement should have been invalidated because Spann engaged in the unauthorized practice of law by drafting the contract of sale. United again presents this argument for the first time on appeal and neither the trial court's jurisdiction nor a matter of great public interest is involved.6 Finally, United asserts Judge Caposela should have granted its motion for a change of venue based on Judge Chiocca's conflict of interest with Grand Teton's counsel. It posits the fact that the case was reassigned to another judge with whom Judge Chiocca worked raised the appearance of impropriety such that the case should have been transferred out of Passaic County. As evidence of further bias, United points to Judge Covello's rejection of its late opposition 6 United challenged the contract of sale on other grounds that have already been addressed in this opinion. A-4072-23 38 to Grand Teton's summary judgment motion and the fact that Judge Covello waited seven months to issue a decision on attorneys' fees. We review a trial court's denial of a motion for change of venue for abuse of discretion. State v. Nelson, 173 N.J. 417, 476-77 (2002); State v. Collins, 2 N.J. 406, 411 (1949) ("Motions for a change of venue . . . are addressed to the sound discretion of the court."). An abuse of discretion arises when the court's decision is made without rational explanation, inexplicably departs from established policies, or rests upon an impermissible basis. Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002). Rule 4:3-3(a) provides that the Assignment Judge may order a change of venue, in relevant part, "if there is a substantial doubt that a fair and impartial trial can be had in the county where venue is laid." The party challenging venue bears the burden of showing good cause for the change. Pressler & Verniero, Current N.J. Court Rules, cmt. to R. 4:3-3 (2026). Here, United argued a change of venue was necessary because Judge Chiocca's conflict of interest "tainted or created doubt that a fair hearing [could] actually [have been] conducted . . . in Passaic County." It argued that Judge Chiocca's conflict affected Judge Covello, who worked with Judge Chiocca. Judge Caposela found defendant failed to articulate any credible reason why A-4072-23 39 Judge Covello would not be impartial and fair and thus had not met the standard for a change of venue. We discern no abuse of discretion in Judge Caposela's decision. United's claim that all Passaic County judges were biased and conspired against it is untethered to any evidence in the record. United provided no evidence to support its motion that Judge Covello could not be fair and impartial other than a belief that Judge Covello was "tainted" merely by virtue of working in the same vicinage as Judge Chiocca. As Judge Caposela clarified, Judge Covello did not work for Judge Chiocca but rather was the conflict judge for the Chancery Division and, at the time, assigned to the Civil Division. Thus, there is nothing in the record to suggest that Judge Chiocca's alleged conflict may have impacted Judge Covello's handling of this case. Affirmed. A-4072-23 40