ABDM PROPERTIES, LLC VS. BOHDAN O. MEUSZ(L-0272-16, SOMERSET COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
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             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-4556-15T4
    ABDM PROPERTIES,
    LIMITED LIABILITY
    COMPANY,
    
            Plaintiff-Appellant,
    
    v.
    
    BOHDAN O. MEUSZ, NANCY
    A. BERLS-MEUSZ, ALAN
    GEORGE FROSS, COLDWELL
    BANKER REAL ESTATE
    SERVICES LLC, d/b/a
    COLDWELL BANKER RESIDENTIAL
    BROKERAGE, COLDWELL BANKER
    RESIDENTIAL REAL ESTATE LLC,
    BRUCE ZIPF,1 CLARKE TOOLE and
    CHARLOTTE SEARS,
    
            Defendants-Respondents.
    
    ________________________________________________________________
    
                  Argued May 23, 2017 – Decided August 23, 2017
    
                  Before Judges Espinosa and Suter.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Somerset County, Docket No. L-
                  0272-16.
    
                  Rajeh A. Saadeh argued the cause for
                  appellant.
    
    
    1
         Incorrectly impleaded as "Bruce Zipp."
               Alan R. Levy argued the cause for
               respondents Bohdan O. Meusz and Nancy A.
               Berls-Meusz (Weiss & Weiss, LLC, attorneys;
               Mr. Levy and Michael Weiss, of counsel and
               on the brief).
    
               Marisa R. De Feo argued the cause for
               respondents Alan George Fross, Coldwell
               Banker Real Estate Services, LLC, Coldwell
               Banker Residential Real Estate, LLC, Bruce
               Zipf, Clarke Toole and Charlotte Sears (Saul
               Ewing LLP, attorneys; Ms. De Feo, Francis X.
               Riley, III, and Caitlin P. Strauss, on the
               brief).
    
    PER CURIAM
    
         Defendants      filed   motions       to   dismiss   the   complaint     of
    
    plaintiff ABDM Properties LLC pursuant to Rule 4:6-2(e). Plaintiff
    
    appeals from orders granting both motions that dismissed its
    
    complaint with prejudice.        Following our plenary review of the
    
    dismissal for failure to state a claim under Rule 4:6-2(e), Rezem
    
    Family Assocs., LP v. Borough of Millstone, 
    423 N.J. Super. 103
    ,
    
    114 (App. Div.), certif. denied, 
    208 N.J. 368
     (2011), we reverse
    
    and remand.
    
                                           I.
    
         Defendants Bohdan Meusz and Nancy Berls-Meusz (Sellers) owned
    
    residential property in Bridgewater that they listed for sale with
    
    defendants Coldwell Banker Real Estate Services LLC (Coldwell
    
    Banker) and Alan George Fross, the listing real estate agent.
    
    After   purchasing    the    property,      plaintiff     discovered   certain
    
    
                                           2                               A-4556-15T4
    defects and brought this suit against Sellers, Fross, and the
    
    "Coldwell Banker Defendants": Coldwell Banker, Coldwell Banker
    
    Residential Real Estate LLC (CBRRE), and three managing members
    
    of CBRRE: Bruce Zipf, Clarke Toole, and Charlotte Sears (Managing
    
    Members).
    
         The complaint asserted claims of consumer fraud, common law
    
    fraud and fraudulent concealment of a latent defect against all
    
    defendants, based on the following allegations:
    
         Fross and Coldwell Banker are licensed by the State of New
    
    Jersey as a salesperson and real estate company, respectively.
    
    Zipf, Toole and Sears are managing members of CBRRE.
    
         Sellers executed a Seller's Disclosure Statement (SDS) and
    
    represented   the    information    they     provided    was    accurate     and
    
    complete.     They   "did    not   disclose   any   defects      in   the   real
    
    property's foundation."       Plaintiff reviewed the SDS and entered
    
    into a contract, dated August 16, 2015, to purchase the property.
    
    During the home inspection, plaintiff observed the "property's
    
    crawlspace was physically and visually inaccessible because the
    
    access point thereto was secured by a plywood panel that was
    
    screwed   shut."     Fross   refused      access   to   the    crawlspace    and
    
    "represented to [p]laintiff and the home inspector that there were
    
    no inspection issues or defects beyond the plywood panel that
    
    concealed the . . . crawlspace."          Prior to the closing, plaintiff
    
                                          3                                A-4556-15T4
    "returned to the . . . property to remove the plywood panel," but
    
    "was unable to access the interior of the dwelling . . . because
    
    [Fross] removed the lockbox and . . . keys to said dwelling."
    
    Sellers and Fross "refused to grant [p]laintiff access to the . . .
    
    property after" the inspection and prior to the closing date.
    
    After   purchasing   the   property,     plaintiff   removed       the   plywood
    
    blocking the crawlspace, which revealed "several defects with
    
    the . . .   property's     foundation     that    weaken     the    structural
    
    integrity of the dwelling thereon and may cause its structural
    
    failure,"   including    "rotted   and   severely    water    damaged       floor
    
    joists, joists with wood destroying insect damage, a lack of any
    
    footing for the inner walls of the foundation, and an organized
    
    and widespread and improper use of cinder blocks to support the
    
    joist system."
    
         Defendants filed a motion in lieu of an answer to dismiss the
    
    complaint pursuant to Rule 4:6-2(e).             At oral argument on the
    
    motion, counsel for Sellers acknowledged that all facts alleged
    
    in the complaint were deemed to be true.          Counsel for the rest of
    
    the defendants similarly limited her arguments to the sufficiency
    
    of the allegations.
    
                                       II.
    
         On a motion to dismiss pursuant to Rule 4:6-2(e), courts must
    
    "search[] the complaint in depth and with liberality to ascertain
    
                                        4                                    A-4556-15T4
    whether the fundament of a cause of action may be gleaned even
    
    from an obscure statement of claim."          Printing Mart-Morristown v.
    
    Sharp Elecs. Corp., 
    116 N.J. 739
    , 746 (1989) (citation omitted).
    
    All facts alleged in the complaint must be accepted as true, ibid.,
    
    and plaintiffs are afforded "every reasonable inference of fact."
    
    Major v. Maguire, 
    224 N.J. 1
    , 26 (2016) (quoting Printing Mart,
    
    supra, 116 N.J. at 746).        "[I]f necessary," the plaintiff is given
    
    an "opportunity . . . to amend."          Ibid. (quoting Printing Mart,
    
    supra, 116 N.J. at 746); see Hoffman v. Hampshire Labs, Inc., 
    405 N.J. Super. 105
    , 116 (2009) (noting dismissal under Rule 4:6-2(e)
    
    is ordinarily without prejudice to allow the plaintiff to amend
    
    the complaint).
    
          In examining the legal sufficiency of the pleading, we are
    
    "limited to . . . the facts alleged on the face of the complaint."
    
    Printing Mart, supra, 116 N.J. at 746.         This means we may consider
    
    the   "allegations   in   the    complaint,   exhibits   attached   to    the
    
    complaint, matters of public record, and documents that form the
    
    basis of a claim" when evaluating a motion to dismiss.                 Banco
    
    Popular N. Am. v. Gandi, 
    184 N.J. 161
    , 183 (2005) (quoting Lum v.
    
    Bank of Am., 
    361 F.3d 217
    , 222 n.3 (3d Cir.), cert. denied., 
    543 U.S. 918
    , 
    125 S. Ct. 271
    , 
    160 L. Ed. 2d 203
     (2004)).
    
          If a court deciding a Rule 4:6-2(e) motion is presented with
    
    and does not exclude "matters outside the pleading," the motion
    
                                          5                             A-4556-15T4
    must "be treated as one for summary judgment and disposed of as
    
    provided by [Rule] 4:46, and all parties shall be given reasonable
    
    opportunity to present all material pertinent to such a motion."
    
    R. 4:6-2.    However, "a court may consider documents specifically
    
    referenced in the complaint 'without converting the motion into
    
    one for summary judgment.'"     Myska v. N.J. Mfrs. Ins. Co., 
    440 N.J. Super. 458
    , 482 (App. Div. 2015) (quoting E. Dickerson & Son,
    
    Inc. v. Ernst & Young, LLP, 
    361 N.J. Super. 362
    , 365 n.1 (App.
    
    Div. 2003), aff'd, 
    179 N.J. 500
     (2004)), certif. dismissed as
    
    improvidently granted, 
    224 N.J. 523
     (2016).
    
                                    III.
    
         In this case, the only documents referenced in the complaint
    
    were the SDS and the contract entered into by the parties on August
    
    16, 2015. Those documents were submitted in support of defendants'
    
    motions.    However, defendants also supported their motions with a
    
    certification from Fross and documents not referenced in the
    
    complaint: the property's listing report and a letter between
    
    counsel following attorney review that modified the sales contract
    
    (Modified Sales Contract Letter).
    
         We summarize relevant parts of the documents submitted in
    
    support of the motion:
    
         The property's listing report stated it was for sale "AS IS"
    
    and "No repairs will be done by the owners.         Buyers will be
    
                                      6                        A-4556-15T4
    responsible for all [Certificates of Occupancy]."
    
         In section 8 of the SDS, covering "STRUCTURAL ITEMS," Sellers
    
    disclosed   they   were   aware   of   the   following    past   or   present
    
    structural issues: (1) "movement, shifting,              deterioration, or
    
    other problems with walls or foundations"; (2) "cracks or flaws
    
    in the walls or foundation"; and (3) "water leakage or mold in the
    
    house."   They also disclosed there were "repairs or other attempts
    
    to control the cause or effect of" these problems.          Where the form
    
    asked for more detail, they wrote, "some cracks in wall from winter
    
    shifting – need spackle" and "mold in window remediated by 911
    
    restoration June 2010."
    
         Paragraph 36 of the sales contract provided:
    
                [Plaintiff] is purchasing the property/home as
                is. No inspections will be conducted and the
                [plaintiff]    is   responsible    for    [the
                Certificate of Occupancy]. [Plaintiff] will
                do any and all repairs. . . . There are no
                other contingencies for the purchase of the
                property.
    
         The Modified Sales Contract Letter included the following:
    
                Notwithstanding the foregoing, [plaintiff]
                represents that he and/or it completed all
                inspections as desired by [plaintiff] during
                attorney review [and] as such, no further
                inspections are required.
    
         In his certification, Fross stated he was "an independent
    
    contractor associated with Coldwell Banker" and "not an employee
    
    of" either Coldwell Banker or CBRRE, and "do[es] not personally
    
                                           7                              A-4556-15T4
    know, and ha[s] never spoken with" any of the Managing Members
    
    "regarding any matter, including the [p]roperty."
    
         Following oral argument, the trial court entered two orders
    
    granting defendants' motion and dismissing plaintiff's complaint
    
    with prejudice under Rule 4:6-2(e), finding
    
              [T]he property was explicitly sold as is
              without any warranties as to its conditions.
    
                   And, moreover, despite initially waiving
              an inspection, [plaintiff] did complete an
              inspection, at least in part, and represented
              to all parties that the inspection was
              conducted and sufficient for [its] purposes.
    
              [(Emphasis added).]
    
                                     IV.
    
         The underlined portion of the trial court's statement relied
    
    on the property's listing report and the Modified Sales Contract
    
    Letter, documents that were not referenced in the complaint.
    
    Therefore,   defendants'   motions       were   subject   to   the   standard
    
    governing summary judgment motions.         R. 4:6-2; see, e.g., R.K. v.
    
    D.L., 
    434 N.J. Super. 113
    , 121 (App. Div. 2014) ("[B]ecause the
    
    court decided defendant's Rule 4:6-2(e) motion after it considered
    
    factual allegations made by the parties in certifications outside
    
    the pleadings, it was required to apply the standard governing
    
    summary judgment motions in Rule 4:46-2(c)." (citing Roa v. Roa,
    
    
    200 N.J. 555
    , 562 (2010))).
    
    
                                         8                               A-4556-15T4
         Although the materials relied upon by the trial court required
    
    the application of Rule 4:46-2 to the motion, it is not evident
    
    from the trial court's decision that the summary judgment standard
    
    was applied, particularly as to the principle that the evidence
    
    is to be viewed in the light most favorable to the non-moving
    
    party.   Rather, the trial court appeared to conclude that the
    
    allegations in the complaint failed as a matter of law based on
    
    statements in documents not referenced in the complaint.
    
         "When used in connection with the sale of real property, 'as
    
    is' generally means the purchaser is acquiring real property in
    
    its present state or condition."          K. Woodmere Assocs., L.P. v.
    
    Menk Corp., 
    316 N.J. Super. 306
    , 316 (App. Div. 1998).            "The term
    
    implies real property is taken with whatever faults it may possess,
    
    and that the grantor is released of any obligation to reimburse
    
    purchaser for losses or damages resulting from the condition of
    
    the property conveyed."       Id. at 317.     A related legal principle
    
    is the doctrine of "caveat emptor," or "buyer beware," which
    
    "dictates that in the absence of express agreement, a seller is
    
    not liable to the buyer or others for the condition of the land
    
    existing at the time of transfer."        T & E Indus. v. Safety Light
    
    Corp., 
    123 N.J. 371
    , 387 (1991).
    
         However,     courts   have   consistently   declined    to   apply   the
    
    caveat   emptor    doctrine   where   there   has   been    concealment    or
    
                                          9                             A-4556-15T4
    nondisclosure of a latent defect.    See, e.g., id. at 400 ("[W]e
    
    would not countenance a doctrine of 'buyer beware' in the context
    
    of fraudulent concealment of infestation of property . . . .");
    
    N.J. Dep't of Envtl. Prot. v. Ventron Corp., 
    182 N.J. Super. 210
    ,
    
    227-28 (App. Div. 1981) (holding "caveat emptor should not apply"
    
    where there has been "nondisclosure . . . of latent, not patent,
    
    defects" by a seller), modified on other grounds, 
    94 N.J. 473
    
    (1983).
    
         Courts have also refused to enforce "as is" or "no warranties"
    
    clauses to defeat concealment of latent defects claims.           In
    
    Weintraub v. Krobatsch, 
    64 N.J. 445
    , 447, 455 (1974), the Supreme
    
    Court held sellers could be liable for not disclosing a cockroach
    
    infestation, even though the sales contract stated "that the
    
    purchasers had inspected the property and were fully satisfied
    
    with its physical condition, that no representations had been made
    
    and that no responsibility was assumed by the seller as to the
    
    present or future condition of the premises."    Similarly, in the
    
    context of the sale of a horse, we held that "as is" and "no
    
    warranties" clauses in a contract "were not intended to insulate
    
    [sellers] against their misrepresentations or their concealment
    
    of information they were required to disclose."      Richie & Pat
    
    Bonvie Stables, Inc. v. Irving, 
    350 N.J. Super. 579
    , 588 (App.
    
    Div. 2002).   "One who engages in deliberate concealment may not
    
                                   10                          A-4556-15T4
    urge that his victim should have been more circumspect or astute."
    
    Correa v. Maggiore, 
    196 N.J. Super. 273
    , 281 (App. Div. 1984).
    
          This exception to caveat emptor "rests upon modern concepts
    
    of   justice   and    fair   dealing     which   recognize        that    purposeful
    
    concealment    can     be    as   destructive     as    an   affirmative          false
    
    statement."    Ibid.    Under this principle, "a seller of real estate
    
    or   a    broker   representing        the    seller    would     be     liable    for
    
    nondisclosure of on-site defective conditions if those conditions
    
    were known to them and unknown and not readily observable by the
    
    buyer."      Strawn    v.    Canuso,    
    140 N.J. 43
    ,   59   (1995)     (citing
    
    Weintraub, supra, 64 N.J. at 454-55); see also                  Johnson Mach. Co.
    
    v. Manville Sales Corp., 
    248 N.J. Super. 285
    , 306 (App. Div. 1991)
    
    (observing New Jersey common law "imposes a duty on a seller of
    
    real property to affirmatively disclose to the buyer a latent
    
    defective condition material to the transaction").
    
          Here, the complaint alleges structural defects were hidden
    
    behind the secured plywood panel; Sellers concealed the defects;
    
    Fross made a misrepresentation in stating there were no inspection
    
    issues behind the plywood and denied plaintiff access to inspect.
    
    These allegations adequately pled a concealment of latent defects
    
    claim.    We therefore conclude the trial judge erred in dismissing
    
    the complaint with prejudice on this basis.
    
    
    
                                            11                                  A-4556-15T4
                                         V.
    
         We next address the claims against CBRRE and the Managing
    
    Members.      The complaint alleges defendants Zipf, Toole and Sears
    
    were each "a managing member of" CBRRE and CBRRE, an LLC, "was the
    
    member of" Coldwell Banker, which is also an LLC.
    
         It is "fundamental . . . that a corporation is a separate
    
    entity from its shareholders, and that a primary reason for
    
    incorporation      is   the   insulation      of   shareholders       from   the
    
    liabilities of the corporate enterprise."              Richard A. Pulaski
    
    Constr. Co. v. Air Frame Hangars, Inc., 
    195 N.J. 457
    , 472 (2008)
    
    (quoting N.J. Dept. of Envtl. Prot. v. Ventron Corp., 
    94 N.J. 473
    ,
    
    500 (1983)).     Thus, "[e]xcept in cases of fraud, injustice, or the
    
    like, courts will not pierce a corporate veil."            Ibid. (alteration
    
    in original) (quoting Ventron, supra, 94 N.J. at 500).
    
         The corporate veil can be pierced upon "a finding that the
    
    parent   so    dominated   the   subsidiary    that   it   had   no    separate
    
    existence but was merely a conduit for the parent."                    Ventron,
    
    supra, 94 N.J. at 501.           "Even in the presence of corporate
    
    dominance, liability generally is imposed only when the parent has
    
    abused the privilege of incorporation by using the subsidiary to
    
    perpetrate a fraud or injustice, or otherwise to circumvent the
    
    law."    Ibid.
    
         The complaint does not allege CBRRE or Managing Members in
    
                                        12                                 A-4556-15T4
    any way "abused the privilege of incorporation by using" Coldwell
    
    Banker "to perpetrate a fraud or injustice, or otherwise to
    
    circumvent the law."       Ibid.   Nor did it allege Coldwell Banker
    
    "was either a fraud or a sham, or that it had failed to observe
    
    the requisite corporate formalities."          Pulaski, supra, 195 N.J.
    
    at 473.   Simply put, plaintiff never pled the necessary factual
    
    allegations in its complaint to support piercing-the-corporate-
    
    veil liability against CBRRE or Managing Members.
    
         As a result, all of plaintiff's claims against CBRRE and
    
    Managing Members are dismissed without prejudice.
    
                                       VI.
    
         Plaintiff's   consumer    fraud     claims     are   governed   by    the
    
    Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -206, which requires
    
    proof of three elements: "1) unlawful conduct by defendant; 2) an
    
    ascertainable loss by plaintiff; and 3) a causal relationship
    
    between   the   unlawful    conduct     and   the   ascertainable     loss."
    
    D'Agostino v. Maldonado, 
    216 N.J. 168
    , 184 (2013) (quoting Bosland
    
    v. Warnock Dodge, Inc., 
    197 N.J. 543
    , 557 (2009)).
    
         Unlawful conduct under the CFA includes
    
              [t]he act, use or employment by any person of
              any   unconscionable   commercial   practice,
              deception, fraud, false pretense, false
              promise, misrepresentation, or the knowing,
              concealment, suppression, or omission of any
              material fact with intent that others rely
              upon   such   concealment,   suppression   or
    
                                       13                                A-4556-15T4
               omission, in connection with the           sale   or
               advertisement of . . . real estate.
    
               [N.J.S.A. 56:8-2.]
    
         "An offense arises under the [CFA] from an affirmative act,
    
    an omission, or a violation of an administrative regulation."
    
    Gennari v. Weichert Co. Realtors, 
    148 N.J. 582
    , 605 (1997).                An
    
    affirmative misrepresentation must be "material to the transaction
    
    and . . . a statement of fact, found to be false, made to induce
    
    the buyer to make the purchase."        Id. at 607.
    
                                       A.
    
         The CFA does not apply to "the non-professional, casual seller
    
    of real estate."     Zaman v. Felton, 
    219 N.J. 199
    , 223 (2014).            In
    
    fact, the Supreme Court "has never applied the CFA against a non-
    
    professional, who does not advertise real estate services to the
    
    public, based upon his or her purchase of residential real estate
    
    for personal use or as an investment."          Ibid.     The allegations
    
    are, therefore, insufficient to support a CFA claim against Sellers
    
    as a matter of law, and that claim against them is dismissed
    
    without prejudice.
    
                                       B.
    
         We   next   consider   the   CFA   claim   against    the    remaining
    
    defendants, Fross and Coldwell Banker.           They argue the trial
    
    court's consideration and reliance upon documents not referenced
    
    
                                       14                              A-4556-15T4
    in the complaint did not convert their motions into          summary
    
    judgment motions; a dismissal with prejudice was proper on the
    
    documentary evidence that was submitted; and, in any event, the
    
    pleadings failed to state a claim upon which relief can be granted.
    
         The fatal deficiency they allege in the CFA count is that it
    
    "fails to specifically identify any alleged misrepresentation by
    
    the Coldwell Banker Defendants," a description that omits Fross.2
    
    Coldwell Banker does not argue the complaint suffers from a similar
    
    deficiency as to Fross and, significantly, alleges no deficiency
    
    either in pleading or evidence regarding the ascertainable loss
    
    and causal relationship elements of a CFA claim.   Those arguments
    
    are, therefore, deemed waived in this appeal.      See Gormley v.
    
    Wood-El, 
    218 N.J. 72
    , 95 n. 8 (2014); Drinker Biddle & Reath LLP
    
    v. N.J. Dept. of Law & Pub. Safety, 
    421 N.J. Super. 489
    , 496 n.5
    
    (App. Div. 2011) (claims not addressed in merits brief deemed
    
    abandoned); Pressler & Verniero, Current N.J. Court Rules, comment
    
    3 on R. 2:6-2 (2017).
    
         Unlike an individual seller, Fross is not immune from a CFA
    
    claim.   See Mango v. Pierce-Coombs, 
    370 N.J. Super. 239
    , 254 (App.
    
    Div. 2004) (noting "a broker may be liable under the CFA").
    
         The complaint alleges Fross "represented to [p]laintiff and
    
    
    2
       Defendants identify the "Coldwell Banker Defendants" as
    Coldwell Banker, CBRRE and the Managing Members.
    
                                    15                         A-4556-15T4
    the home inspector that there were no inspection issues or defects
    
    beyond    the   plywood   panel     that    concealed     the . . .    property's
    
    crawlspace."     As noted, the complaint also alleges this statement
    
    was false. Because this was certainly a statement of fact material
    
    to the transaction, the complaint adequately pled this element of
    
    the CFA claim.
    
         Coldwell Banker argues the "alleged misconduct of the other
    
    [d]efendants" cannot "sustain the claims against the Coldwell
    
    Banker Defendants."       We disagree.
    
         The    complaint     alleges    Fross     "was   employed    by"    Coldwell
    
    Banker.    This allegation provides a basis for the application of
    
    the doctrine of respondeat superior, rendering Coldwell Banker
    
    liable for Fross's misrepresentation "if, at the time of the
    
    occurrence,     [he]    was   acting       within   the   scope   of    his . . .
    
    employment."     Carter v. Reynolds, 
    175 N.J. 402
    , 408-09 (2003).3
    
         The pleading is therefore adequate to support a CFA claim
    
    against Coldwell Banker.
    
                                           VII.
    
         Common law fraud consists of five elements: "(1) a material
    
    
    
    3
       Fross certified he was "an independent contractor associated
    with Coldwell Banker." If that is the case, Coldwell Banker can
    be held liable for Fross's fraud if it "direct[ed] or
    participate[d] in" it. Baldasarre v. Butler, 
    132 N.J. 278
    , 291
    (1993).
    
                                           16                                A-4556-15T4
    misrepresentation      of   a   presently   existing   or    past   fact;   (2)
    
    knowledge or belief by the defendant of its falsity; (3) an
    
    intention that the other person rely on it; (4) reasonable reliance
    
    thereon by the other person; and (5) resulting damages."             Allstate
    
    N.J. Ins. Co. v. Lajara, 
    222 N.J. 129
    , 147 (2015) (quoting Banco
    
    Popular, supra, 184 N.J. at 172-73).               Put differently, "legal
    
    fraud consists of a material representation of a presently existing
    
    or past fact, made with knowledge of its falsity and with the
    
    intention that the other party rely thereon, resulting in reliance
    
    by that party to his detriment."            Jewish Ctr. of Sussex Cty. v.
    
    Whale, 
    86 N.J. 619
    , 624 (1981).
    
         Defendants have targeted the fourth element of the fraud
    
    claim, "reasonable reliance," as inadequately pled.                  "Without
    
    reasonable reliance on a material misrepresentation, an action in
    
    fraud must fail."   Triffin v. Automatic Data Processing, Inc., 
    394 N.J. Super. 237
    , 249 (App. Div. 2007).
    
         Sellers   argue    plaintiff    made    two   factual   allegations     to
    
    support its fraud claim against them: (1) Sellers failed to
    
    disclose problems with the property's foundation on the SDS; and
    
    (2) Sellers refused to give plaintiff access to the crawlspace
    
    during the home inspection.          At oral argument before the trial
    
    court, Sellers' counsel explicitly stated that, for the purpose
    
    of the motion, they were "not disputing the facts as alleged in
    
                                         17                               A-4556-15T4
    the complaint."    They argued the allegations were insufficient to
    
    allege "justifiable reliance."     On appeal, however, Sellers argue
    
    "these allegations are either disproven by documentary evidence
    
    or contradicted by plaintiff's own allegations."
    
         The remaining defendants argue the complaint fails to allege
    
    "a single fact upon which to base a common law fraud claim against"
    
    Coldwell Banker and also argue the claim was properly dismissed
    
    against   Fross.      They   contend    "[p]laintiff   cannot   plausibly
    
    establish that it relied upon Fross' alleged misrepresentation
    
    regarding the lack of any defects in the foundation in light of
    
    the [SDS] which does disclose defects therein."            (Emphasis in
    
    original).
    
         Defendants' arguments conflate the adequacy of the pleading
    
    tested by a Rule 4:6-2(e) motion, with the weighing of evidence
    
    undertaken in an analysis under Rule 4:46-2(c).
    
         To survive a Rule 4:6-2(e) motion, the plaintiff only had to
    
    allege facts which, if proven, would sustain a judgment in its
    
    favor.    In contrast, "[t]o defeat a motion for summary judgment,
    
    the opponent must "'come forward with evidence" that creates a
    
    genuine issue of material fact.'"          Cortez v. Gindhart, 435 N.J.
    
    Super. 589, 605 (App. Div. 2014) (citation omitted), certif.
    
    denied, 
    220 N.J. 269
     (2015).
    
         Although   the   summary   judgment    standard   should   have   been
    
                                       18                             A-4556-15T4
    applied here, the arguments were made based on the adequacy of the
    
    pleadings. At least for the purpose of their motions, no defendant
    
    disputed the factual allegations made in the complaint. We decline
    
    to hold plaintiff to a Rule 4:46-2(c) standard when defendants did
    
    not challenge the adequacy of its proofs measured against that
    
    standard.
    
          The complaint alleges Sellers "did not disclose any defects
    
    in the . . . property's foundation in the [SDS]" and Fross refused
    
    access to the crawlspace area during the home inspection and
    
    affirmatively   represented   there    were   no   inspection    issues   or
    
    defects behind the plywood panel.         Although the SDS disclosed
    
    "movement, shifting, deterioration, or other problems with walls
    
    or foundations" and "cracks or flaws in the walls or foundation,"
    
    the detail Sellers provided regarding these issues was "some cracks
    
    in wall from winter shifting – need spackle."             This disclosure
    
    cannot fairly be characterized as being so unequivocal as to
    
    preclude any justifiable reliance upon the representation that
    
    there were no inspection issues or defects behind the plywood
    
    panel as a matter of law.
    
          Similarly, if it is proven that Sellers and Fross knowingly
    
    and   intentionally   concealed    the    extent    of    the    property's
    
    foundational    problems,   plaintiff's   pursuit    of   an    independent
    
    investigation thereafter does not impede its right to sue them for
    
                                      19                               A-4556-15T4
    fraud.      See Byrne v. Weichert Realtors, 
    290 N.J. Super. 126
    , 137
    
    (App. Div.), certif. denied, 
    147 N.J. 259
     (1996).
    
             Viewing the complaint with the liberality to which it is
    
    entitled, the complaint pled with specificity all five elements
    
    of   a    common   law    fraudulent     misrepresentation     claim    against
    
    Sellers, Fross and Coldwell Banker.             The dismissal of these claims
    
    is therefore reversed.
    
                                            VIII.
    
             In Weintraub, supra, 64 N.J. at 455, the Supreme Court
    
    articulated a cause of action based on "deliberate concealment or
    
    nondisclosure      of    [a]   latent    [defect]    not   observable   by    the
    
    purchasers on their inspection."              The elements of this claim are:
    
    "the deliberate concealment or nondisclosure by the seller of a
    
    material fact or defect not readily observable to the purchaser,
    
    with the buyer relying upon the seller to his detriment." Ventron,
    
    supra, 94 N.J. at 503.
    
             Citing the arguments made regarding the other claims, Sellers
    
    argue this claim must be dismissed because plaintiff is unable to
    
    prove it relied upon a deliberate concealment to its detriment.
    
    Fross and Coldwell Banker argue there are no allegations against
    
    them in this count and further, they are unaware of a cognizable
    
    claim for purposeful concealment under the facts alleged.               Neither
    
    challenge to the sufficiency of the allegations in the complaint
    
                                             20                             A-4556-15T4
    has merit.
    
          The complaint clearly alleges non-minor, material defects:
    
    "rotted and severely water damaged floor joists, joists with wood
    
    destroying insect damage, a lack of any footing for the inner
    
    walls of the foundation, and an organized and widespread and
    
    improper use of cinder blocks to support the joist system."            The
    
    defects were not observable to plaintiff because they were behind
    
    a "plywood panel that was screwed shut" and "prevented visual and
    
    physical     access   to   the . . .    property's    crawlspace."     The
    
    complaint also sufficiently alleged detrimental reliance, stating
    
    "[p]laintiff relied on the representations" made by Sellers and
    
    Fross in purchasing the property which had "several defects with
    
    [its] foundation that weaken the structural integrity of the
    
    dwelling thereon and may cause structural failure."
    
          As for the concealment element, the complaint alleges Sellers
    
    and   Fross    "purposefully     concealed    [the]    latent   defective
    
    conditions from [p]laintiff." With respect to Fross, the complaint
    
    alleges he "refused to provide access to the . . . property's
    
    crawlspace," "refused to grant [p]laintiff access to the real
    
    property" between the inspection and the closing, and "represented
    
    to [p]laintiff . . . that there were no inspection issues or
    
    defects beyond the plywood panel."        Certainly, this allegation of
    
    physical and verbal conduct sufficiently alleges concealment.
    
                                       21                            A-4556-15T4
           With respect to Sellers, the complaint alleges they concealed
    
    the    defects   by    "not   disclos[ing]         any   defects   in   the . . .
    
    property's foundation in the [SDS]."               As we have noted, although
    
    the SDS disclosed some issues with "past or present movement,
    
    shifting,    deterioration,          or    other    problems     with   walls      or
    
    foundation," the explanation given on request minimized rather
    
    than   disclosed      the   extent    of    the    issues   as   alleged   in    the
    
    complaint.   See Ventron, supra, 182 N.J. Super. at 227-28 (finding
    
    that "notice of hazardous chemicals within and adhering as residue
    
    to the industrial buildings did not put the [buyers] on notice of
    
    surface and subsurface contaminants").
    
           These allegations were sufficient to allege a cognizable
    
    claim based on the deliberate concealment of a latent defect that
    
    was not observable on inspection.                  Therefore, we reverse the
    
    dismissal of count three of the complaint as to Sellers, Fross and
    
    Coldwell Banker.
    
           Reversed and remanded.         We do not retain jurisdiction.
    
    
    
    
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