AMERESTATE HOLDINGS, LLC VS. CBRE, INC. DRESDNER ROBIN ENVIRONMENTAL MANAGEMENT, INC. VS. FEINSTEIN, RAISS, KELIN & BOOKER, LLC (L-3012-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2416-17T3

AMERESTATE HOLDINGS, LLC,
BROADWAY WEST, LLC and
811 ASSOCIATES, LLC,

Plaintiffs-Appellants,

v.

CBRE, INC., CHARLES BERGER,
ELLI KLAPPER, BACA REAL ESTATE
INVESTMENT CORP., 1064 REALTY
CORP., WESLEY REALTY CORP.,
B'WAY REALTY CORP., DRESDNER
ROBIN ENVIRONMENTAL MANAGEMENT,
INC., and EDWARD V. KOLLING,

Defendants-Respondents,

and

GRID REAL ESTATE, LLC,
GRID COMMERCIAL REAL ESTATE,
LLC, and ROBERT ANTONICELLO,

Defendants.
_______________________________
DRESDNER ROBIN ENVIRONMENTAL
MANAGEMENT, INC. and EDWARD
V. KOLLING,

Third-Party Plaintiffs,

v.
FEINSTEIN, RAISS, KELIN &
BOOKER, LLC, and RICHARD S.
KLEIN, ESQ.,

Third-Party Defendants.
_______________________________

Argued April 30, 2018 – Decided September 4, 2018

Before Judges Accurso, O'Connor and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
3012-15.

John R. Wenzke argued the cause for appellants
(Lasser Hochman, LLC, attorneys; John R.
Wenzke, of counsel and on the brief).

Kenneth L. Moskowitz argued the cause for
respondents CBRE, Inc., Charles Berger and
Elli Klapper (Brown Moskowitz & Kallen, PC,
attorneys; Kenneth L. Moskowitz and Steven R.
Rowland, of counsel and on the brief).

Charles F. Kellett argued the cause for
respondents Dresdner Robin Environmental
Management, Inc. and Edward V. Kolling
(Kaufman Dolowich & Voluck, LLP, attorneys;
Gino Zonghetti, of counsel and on the brief;
Charles F. Kellett, on the brief).

The Aboushi Law Firm, attorneys for
respondents Baca Real Estate Investment Corp.,
1064 Realty Corp., Wesley Realty Corp., and
B'Way Realty Corp., join in the briefs of
respondents CBRE, Inc. and Dresdner Robin
Environmental Management, Inc.

PER CURIAM

By leave granted, plaintiffs Amerestate Holdings, LLC,

Broadway West, LLC and 811 Associates, LLC, (collectively referred

2 A-2416-17T3
to as "plaintiffs") appeal from orders requiring disclosure of

certain attorney-client communications related to Amerestate's

February 5, 2015 purchase of a Jersey City real estate development

site. Because we are convinced the motion court correctly

determined plaintiffs waived the attorney-client privilege with

regard to the limited communications that are the subject of the

court's orders, we affirm with the modification that only

communications occurring prior to the February 5, 2015 purchase

shall be disclosed.

I.

A. The Complaint

We first summarize the allegations in plaintiffs' amended

complaint1 because they provide context for the dispute leading to

the orders challenged on appeal. Plaintiffs allege that in 2014

Amerestate's managing member, Jacob Salamon, received an email

from defendant Charles Berger, a vice president and real estate

agent at defendant CBRE, Inc., concerning a Jersey City real estate

development site being offered for sale by defendants Baca Real

Estate Investment Corp., 1064 Realty Corp., Wesley Realty Corp.

and B'Way Realty Corp. (collectively referred to as the "seller

defendants"). According to the complaint, Salamon thereafter

1
The operative complaint is the June 6, 2016 amended complaint.
The original complaint was filed in July 2015.

3 A-2416-17T3
received a prospectus prepared by CBRE representing that the site

consisted of seven adjoining lots comprised of 3.91 acres totaling

170,479 square feet, and the development could consist of

approximately 580 as-of-right apartment units.

The complaint alleges that in addition to Berger and CBRE,

defendants Grid Real Estate, LLC, its president, defendant Robert

Antonicello, and CBRE vice president Elli Klapper acted as the

seller defendants' agents, and were responsible for the

representations in the prospectus. Plaintiffs claim

representations concerning the number of as-of-right units were

material to the decision to purchase the site because as-of-right

units could be constructed without obtaining zoning approvals and

other variances. Plaintiffs further allege CBRE, Berger and

Klapper knew the right to construct that number of units was

material to the purchase decision.

Based on CBRE's representations concerning the acreage and

number of as-of-right units, in June 2014, plaintiffs submitted a

$19.5 million offer to purchase the site, and requested that Berger

and CBRE confirm that "approximately 580 as-of-right units could

be built on the . . . site." Berger later advised Amerestate that

CBRE had retained a professional planner, defendant Edward V.

Kolling, who was the director of planning services at defendant

Dresdner Robin Environmental Management, Inc., (Dresdner Robin),

4 A-2416-17T3
and that Kolling confirmed approximately 565 as-of-right units

could be constructed on the site.

As negotiations for the purchase contract continued,

plaintiffs required confirmation from Berger and CBRE that they

would be able to build 565 as-of-right units on the site. The

complaint alleges the confirmation was required because the

purchase agreement would not provide for due diligence or physical

inspection of the property, other than for environmental issues.

In August 2014, Berger sent Amerestate an analysis from

Dresdner Robin representing that 567 as-of-right units could be

built on the site, and explaining its methodology for the

calculation. According to the complaint, in direct reliance on

the representations concerning the as-of-right units, Amerestate

entered into an Agreement of Purchase and Sale for the site on

September 3, 2014. The closing of title took place almost five

months later on February 5, 2015, for the agreed-upon $19.5 million

sale price.

It was not until after the closing that Amerestate obtained

a survey of the consolidated seven lots and learned for the first

time that the site consisted of only 146,085 square feet, or

3.35365 acres, and, as a result, only permitted construction of

486 as-of-right apartment units. Plaintiffs allege they then

learned that prior to CBRE's distribution of the prospectus and

5 A-2416-17T3
the subsequent negotiations surrounding Amerestate's execution of

the purchase agreement, CBRE, Grid, Berger, Klapper and

Antonicello (collectively referred to as the "broker defendants")

met with representatives from the Jersey City Planning Staff and

were advised the site permitted "no greater than 510 as-of-right

units." Plaintiffs allege the broker defendants failed to disclose

this information.

Plaintiffs further claim Kolling advised the broker

defendants in May 2014 that the number of as-of-right units might

be no greater than 498, but that information was never conveyed

to plaintiffs. In addition, plaintiffs aver that in August 2014,

at the broker defendants' request, Dresdner Robin and Kolling

deleted a discussion of its calculation of the 498 as-of-right

units from a letter it prepared, knowing CBRE would provide the

revised letter to plaintiffs without disclosure of the

calculation.

The causes of action asserted in the complaint are founded

on the claim that defendants purposefully or negligently

misrepresented the site's size and number of as-of-right apartment

units. Plaintiffs claim they relied on these misrepresentations

and assert causes of action for legal fraud, negligent

misrepresentation, breach of contract, breach of the covenant of

good faith and fair dealing, unjust enrichment, civil conspiracy,

6 A-2416-17T3
professional malpractice and reformation of contract. Defendants

filed answers to the complaint denying plaintiffs' claims.

B. Plaintiffs' Assertion of the Attorney-Client Privilege

During discovery, plaintiffs objected to defendants' requests

for information and documents, and deposition questions that

required disclosure of attorney-client communications related to

their alleged reliance on misrepresentations as to the site's size

and the number of as-of-right units. Plaintiffs asserted the

communications constituted privileged attorney-client

communications. See N.J.R.E. 504. Defendants argued plaintiffs

waived the attorney-client privilege with regard to the

communications by putting in issue its purported reliance on the

alleged misrepresentations.

Defendants asserted the communications related to an issue

raised by plaintiffs in their complaint – whether they reasonably

relied on the alleged misrepresentations concerning the site's

size and the number of as-of-right units in making their decision

to purchase and close title on the site. Defendants also claimed

plaintiffs waived the attorney-client privilege by otherwise

disclosing attorney-client communications to third parties.

C. The Motions to Compel Disclosure

CBRE, Berger and Klapper and Dresdner Robin and Kolling

separately moved for orders compelling plaintiffs to disclose

7 A-2416-17T3
attorney-client communications related to their alleged reasonable

reliance on the alleged misrepresentations. In May 2017, the

court entered orders denying the motions, finding that under our

Supreme Court's decision in State v. Mauti, 208 N.J. 519 (2012),

the attorney-client privilege could not be pierced because there

were no "constitutional rights . . . at stake."

CBRE, Berger and Klapper and Dresdner Robin and Kolling moved

for reconsideration, arguing the motion court erred in its

application of Mauti. They claimed the Court in Mauti expressly

recognized the attorney-client privilege is subject to explicit

and implicit waivers, and that plaintiffs implicitly waived the

privilege by placing in issue their attorney-client communications

concerning the size of the site, the number of as-of-right units

and their due diligence in considering those issues by asserting

they reasonably relied on the alleged misrepresentations. They

also claimed plaintiffs expressly waived the privilege by

disclosing attorney-client privileged communications to third

parties.

After hearing argument, the court determined plaintiffs had

placed in issue the communications with their counsel concerning

the site's size, the as-of-right units and plaintiffs' due

diligence by asserting they reasonably relied on the broker

defendants' alleged misrepresentations. The court also determined

8 A-2416-17T3
plaintiffs waived the privilege by disclosing to third parties

certain communications with its counsel. The motion court

expressed concern about the scope of the permitted discovery,

noting it was incorrect to assume all communications between

plaintiffs and their counsel should be disclosed.

The court explained that the inquiries in those limited areas

should "be narrowly tailored," and its orders requiring disclosure

of the communications covered both questions posed during

depositions as well as requests for documents. The court further

advised that it would immediately review any objections to any

questions posed during depositions, and would review in camera any

documents, where objections based on the attorney-client privilege

were interposed.

D. The October 27, 2017 Orders Directing Disclosure

The court entered an October 27, 2017 order granting CBRE's

motion, and directing that plaintiffs, and their counsel and

agents, disclose communications concerning "all matters that

plaintiff[s] [have] put in [] issue concerning the subject matter

of the size/acreage and development potential of the . . . [s]ite,

and communications and advice concerning diligence and

investigation that had been or should be conducted to assess the

development potential of the [s]ite . . . ." The court's order

9 A-2416-17T3
limited the disclosure to six defined topics related to the

investigation and negotiation of the as-of-right units.2

2
The court ordered disclosure of communications concerning:

(i) . . . the advisability and/or consequences
of submitting offers that waived the right to
terminate the transaction in the event that
the minimum number of "as-of-right" units
could not be confirmed by Amerestate in
conducting its diligence;

(ii) . . . the need, advisability and/or
possibility of negotiating for the inclusion
in the Purchase Agreement of representations
and/or warranties concerning the area of the
consolidated [site] and/or the number of units
that could . . . constructed on the Site;

(iii) . . . the need, advisability and/or
possibility of negotiating or renegotiating
the right to terminate the . . . [agreement]
in the event that the minimum number of "as-
of-right" units could not be confirmed by
Amerestate in conducting its diligence;

(iv) . . . the need, advisability and/or
possibility of negotiation or renegotiating a
provision making the purchase contingent on
the Jersey City Planning Board approval of a
minimum number of as-of-right units and/or
making the purchase price dependent on the
number of units ultimately approved by the
Planning Board;

(v) . . . the need and/or advisability of
obtaining an updated survey so that the area
of the consolidated Site could be verified
and, derivatively, Amerestate could obtain an
accurate projection of the number of "as-of-
right" units from its architect; and

10 A-2416-17T3
 The court entered a separate October 27, 2017 order granting

Dresdner Robin and Kolling's motion, and ordering that plaintiffs

and their counsel disclose communications and information

exchanged related to the "size/acreage and development potential

of the property at issue . . . [and] regarding steps and measures

to be taken by [p]laintiff[s] to evaluate the . . . transaction."

E. Plaintiffs' Motion for Clarification or Reconsideration

Plaintiffs subsequently moved for clarification or

reconsideration of the court's October 27, 2017 orders permitting

discovery of the attorney-client communications. CBRE filed a

motion to enforce the orders.

In its January 10, 2018 decision on the motions, the court

noted that plaintiffs sought a temporal limitation on the

communications covered by the court's October 27, 2017 orders.

The court recognized the orders did not include "a temporal

limitation on the permitted disclosure," and that CBRE and Dresdner

Robin argued "at the very least" plaintiffs put at issue its

attorney-client communications in substantive areas covered by the

court's orders "at the very least as of the date of the closing

(vi) . . . the need to obtain an independent
projection concerning the number of "as-of-
right" units that potentially could be
constructed on the Site including, without
limitation, the review of existing surveys and
deeds . . . .

11 A-2416-17T3
of its purchase of the . . . site on February 5, 2015, if not

through the date that . . . plaintiff[s] commenced this action."

The court then discussed the disclosures it ordered on October 27,

2017, and stated they "shall include the time period through the

date of the closing of the transaction as of February 5, 2015."

The court, however, further stated that plaintiffs and their

counsel shall produce documents and electronically stored data,

and answer deposition questions, concerning attorney-client

communications occurring "prior to the commencement of this

action" concerning the matters plaintiffs "has placed in issue as

set forth in the [court's] prior orders . . . ."

The court entered a January 10, 2018 order denying plaintiffs'

motion, but directed that "defendants are permitted to make inquiry

into attorney[-]client communications" limited to "the period

prior to September 3, 2014," concerning three issues: 1.

communications "regarding the site's projected unit count"; 2.

"the advice that . . . plaintiff[s] received from counsel

concerning the diligence necessary to make an accurate projection

of [the] unit count; and 3. "the contractual protections necessary

to manage the risks related to the unit count."

The court entered a separate January 10, 2018 order granting

CBRE's motion, and directing that plaintiffs and their counsel

disclose communications "exchanged between Amerestate and its

12 A-2416-17T3
attorneys prior to the commencement of this action which pertain

to those matters that Amerestate itself has put 'in-issue' as set

forth in" the court's October 27, 2017 orders.

We subsequently granted plaintiffs' motion for leave to

appeal the court's October 27, 2017 and January 10, 2018 orders.

Plaintiffs present the following arguments for our

consideration:

POINT I

THE TRIAL COURT PROPERLY APPLIED MAUTI IN ITS
MAY 26, 2017 DECISION AND FOUND NO IMPLICIT
OR EXPLICIT WAIVER AND THEN ERRED IN ITS
OCTOBER 27, 2017 AND JANUARY 10, 2018
RECONSIDERATION CONCLUSIONS THAT CERTAIN
EMAILS TO THIRD PARTIES SOMEHOW CONSTITUTED A
WAIVER ALLOWING FOR AN EXTENSIVE AND OVERBROAD
PIERCING OF THE PRIVILEGE.

A. The Standard Of Appellate Review Is De
Novo.

B. The Attorney Client Privilege.

C. The May 26, 2017 Trial Court Decision
Properly Rejected The Defendants' "Legitimate
Need" Arguments And Their Effort To Apply The
Kozlov Three-Part Balancing Test And Instead
Properly Applied The Holding In Mauti.

D. For An Implied Waiver To Be Found The Law
Requires That The Defendants Establish That
Plaintiffs Put a "Communication" With Their
Attorneys "At Issue" By Attempting To Use The
Communication As A Sword And the Privilege As
A Shield.

1. The Plaintiffs Must Put A Privileged
Communication At Issue In The Litigation In

13 A-2416-17T3
 Order To Begin The Implied [W]aiver Analysis
– the Mere Assertion Of A Claim Is
Insufficient.

2. There Are Different Tests Applied To
A Piercing Of A Privilege And An Implicit
Waiver Of A Privilege And the Implied Waiver
Test Requires The Use Of A Privileged
Communication As a Sword And The Privilege As
a Shield.

3. The Case Law Finding An Implicit
Waiver Relied Upon By Defendants Requires The
Use Of A Privileged Communication As a Sword
[A]nd The Privilege As a Shield.

E. The Trial Court Erred In Its
Reconsideration Decisions And Piercing Orders
Because The Documents Relied Upon To Conclude
That The Privilege Was Waived Either Do Not
Disclose Attorney Client Communications, Were
After The Contract Was Executed Or Are Not
Related To the Areas That The Court Permitted
The Privilege To Be Pierced.

F. The Very Relief Granted By The Piercing
Orders Demonstrates That The Purpose Of
Defendants Inquiry Is Unrelated To An
Otherwise Privileged Communication Put At
Issue And, Instead, Is Related To The Improper
Purpose Of Fishing To Prove That Plaintiffs
Did Not Take Advise Of Their Attorneys Which,
As A Matter Of Law, Is A Baseless Defense.

II.

"[W]e 'normally defer to a trial court's disposition of

discovery matters . . . unless the court has abused its

discretion[,]' or the decision is based on 'a mistaken

understanding of the applicable law.'" Hedden v. Kean Univ., 434

N.J. Super. 1, 10 (App. Div. 2013) (alteration in original). Here,

14 A-2416-17T3
we review the court's determination concerning the application and

waiver of the attorney-client privilege de novo, "[b]ecause '[a]

trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special

deference.'" Ibid. (quoting Manalapan Realty, LP v. Manalapan

Twp. Comm., 140 N.J. 366, 378 (1995)).

N.J.S.A. 2A:84A-20, which is codified in N.J.R.E. 504, sets

forth the parameters of the attorney-client privilege, providing

in part that "communications between [a] lawyer and his [or her]

client in the course of that relationship and in professional

confidence, are privileged . . . ." The attorney-client privilege

"rests on the need to 'encourage full and frank communications

between attorneys and their clients,'" Hedden, 434 N.J. Super. at

10 (quoting United Jersey Bank v. Wolosoff, 196 N.J. Super. 553,

561 (App. Div. 1984)), "[p]reserv[es] the sanctity of

confidentiality of a client's disclosures to his [or her]

attorney," ibid. (quoting United Jersey Bank, 196 N.J. Super. at

561), and "constitutes an indispensable ingredient of our legal

system," id. at 11 (quoting In re Grand Jury Subpoenas Duces Tecum,

241 N.J. Super. 18, 27-28 (App. Div. 1989)). "[T]here is a

presumption that a communication made in a lawyer-client

relationship has been made in professional confidence[,]" and

where "applicable, '[the privilege] must be given as broad a scope

15 A-2416-17T3
as its rationale requires.'" Id. at 12 (quoting United Jersey

Bank, 196 N.J. Super. at 561).

"[T]he attorney-client privilege is 'clearly extremely

important,' [but] it is neither absolute nor sacrosanct." Id. at

11-12 (quoting Biunno, Current N.J. Rules of Evidence, cmt. 1 on

N.J.R.E. 504(3) (2013)). "[P]rivileges stand in what we have

declared to be a 'disfavored status' because they have an effect

on the truth-seeking function." Mauti, 208 N.J. at 531 (quoting

Payton v. N.J. Tpk. Auth., 148 N.J. 524, 539 (1997)). Thus, "we

construe testimonial privileges narrowly because they prevent the

trier of fact from hearing relevant evidence and thereby undermine

the search for truth[,] . . . [and] sensibly accommodate privileges

to the aim of a just result, and accept them to the extent they

outweigh the public interest in full disclosure." Id. at 531-32

(quoting State v. J.G., 201 N.J. 369, 383 (2010)).

Where a privilege applies, it may be pierced in certain

limited circumstances. Our Supreme Court established a three-part

standard that must be satisfied by a party seeking to pierce a

privilege: (1) there must be "a legitimate need . . . to reach the

evidence sought to be shielded"; (2) the evidence must be relevant

and material to an issue in the case; and (3) there must be a

finding, "by a fair preponderance of the evidence," that the

information sought cannot be obtained from a "less intrusive

16 A-2416-17T3
source." In re Kozlov, 79 N.J. 232, 243-44 (1979) (quoting In re

Farber, 78 N.J. 259, 276-77 (1978)).

In Mauti, the Court "severely curtailed" application of the

Kozlov standard. Hedden, 434 N.J. Super. at 17. The Court

explained,

Kozlov did not propound a broad equitable
balancing test pursuant to which any privilege
is subject to piercing if the adversary
"needs" relevant evidence that cannot be
obtained from another source. Such an
approach would eviscerate the privileges and
trench on the legislative judgments informing
them. To the contrary, in Kozlov, . . . we
recognized that only in the most narrow of
circumstances, such as where a privilege is
in conflict with a defendant's right to a
constitutionally guaranteed fair trial, would
the need prong of its test be satisfied.

[Mauti, 208 N.J. at 537-38.]

The Court added that, in the context of a statutory privilege,

"the privilege could not be overborne, except where specifically

so provided by the Legislature or where the need arose out of a

constitutionally based command." Id. at 538.

The Court, however, also recognized that "any party is free

to waive a privilege." Id. at 532. Under N.J.R.E. 530, a privilege

may be explicitly waived by contract, or by making or consenting

to disclosure of privileged communications, "without coercion and

with knowledge of [the client's] right or privilege." Ibid.

(quoting N.J.R.E. 530). "[O]ur courts have also recognized that

17 A-2416-17T3
a privilege may be waived 'implicitly' where a party puts a

confidential communication 'in issue' in a litigation." Ibid.

(quoting Kinsella v. Kinsella, 150 N.J. 276, 300 (1997)).

Here, the court ordered disclosure of plaintiffs'

communications with their counsel based on its determination

plaintiffs implicitly waived the privilege by placing the

communications in issue. The court also relied on plaintiffs'

explicit waiver of the privilege by their disclosure of certain

communications with their counsel related to the purchase and

development of the site. We first address the court's

determination that plaintiffs implicitly waived the privilege by

placing communications with their counsel in issue.

A.

In Mauti, the Court provided examples of circumstances where

it was determined that a party implicitly waived a privilege by

putting confidential communications in issue. Ibid. The Court

cited Arena v. Saphier, 201 N.J. Super. 79, 90 (App. Div. 1985),

where we determined a plaintiff claiming emotional distress

damages in a malpractice action waived the psychologist-patient

privilege, N.J.S.A. 45:14B-28 and N.J.R.E. 505, as to her

communications with her treating psychologist. Ibid.; Saphier,

201 N.J. Super. at 90. There, we recognized the privilege's

purpose was to facilitate the free flow of information between a

18 A-2416-17T3
patient seeking treatment and his or her psychologist, but

determined that "a patient should not be permitted to establish a

claim while simultaneously foreclosing inquiry into relevant

matters," and ordered limited disclosure of communications between

the plaintiff and her psychologist to the extent they pertained

to the issue in the malpractice case – "her present mental and

emotional condition." Saphier, 201 N.J. Super. at 89-90.

The Court also cited Blitz v. 970 Realty Assoc., 233 N.J.

Super. 29 (App. Div. 1989), as a further example of an implicit

waiver of a privilege by a party's placing privileged

communications in issue. Mauti, 208 N.J. at 532. In Blitz, the

plaintiff alleged the defendants fraudulently induced her into

signing a real estate purchase contract by misrepresenting the

environmental conditions and clean-up costs for the property. 233

N.J. Super. at 30-31. The defendants sought disclosure of the

plaintiff's communications with her counsel concerning the

environmental issues that occurred prior to her execution of the

purchase contract. Id. at 31.

Like plaintiffs here, the plaintiff in Blitz asserted a cause

of action for legal fraud, which requires proof establishing the

essential element of reasonable reliance. Id. at 36. We observed

that

19 A-2416-17T3
 [a]lthough '[o]ne who engages in fraud . . .
may not urge that one's victim should have
been more circumspect or astute, . . . 'if
a party to whom representations are made
nevertheless chooses to investigate the
relevant state of facts for himself, he will
be deemed to have relied on his own
investigation and will be charged with
knowledge of whatever he could have discovered
by a reasonable investigation.'

[Id. at 36-37 (second and third alterations
in original) (citations omitted)].

We concluded the motion court correctly determined the

plaintiff waived the attorney-client privilege as to her

communications with her counsel prior to entering into the contract

because she "placed in issue what she knew prior to" executing the

contract. Id. at 37. We also determined that the plaintiff did

not waive the privilege with regard to her post-contract

communications with her attorney because any information obtained

following her entry into the contract was "irrelevant to the

reliance issue." Ibid.

Lastly, in Mauti the Court cited Wolosoff, 196 N.J. Super.

at 564-65, as a further example of an implicit waiver of the

attorney-client privilege. 208 N.J. at 532. In Wolosoff, the

plaintiff sought rescission of a settlement agreement based on a

claim the defendant made misrepresentations during settlement

negotiations. 196 N.J. Super. at 558-59. The defendant sought

access to communications between the plaintiff and its attorneys

20 A-2416-17T3
to challenge the plaintiff's claim it relied on the defendant's

alleged misrepresentations. Id. at 559-60. Noting that permitting

the plaintiff to rely on the privilege would inequitably allow the

plaintiff to "divulge whatever information is favorable to its

position and assert the privilege to preclude disclosure of . . .

detrimental facts," we concluded that "when confidential

communications are made a material issue in a judicial proceeding,

fairness demands waiver of the privilege," ibid. (quoting United

States v. Mierzwicki, 500 F. Supp. 1331, 1335 (D. Md. 1980)).

Relying on Arena, Blitz and Wolosoff, the Court in Mauti

concluded that "in each of those circumstances, the party who

places a confidential communication in issue voluntarily creates

the 'need' for disclosure of those confidences to the adversary."

208 N.J. at 532. Measured against that standard, we are convinced

the motion court correctly determined plaintiffs' communications

pertaining to the as-of-right units, size of the site and any due

diligence or investigation concerning those matters were placed

in issue by plaintiffs' allegation they reasonably relied on the

alleged misrepresentations. See Weingarten v. Weingarten, 234

N.J. Super. 318, 327 (App. Div. 1989) (finding that by claiming

she reasonably relied on the defendant's representations in

entering into a settlement agreement, the plaintiff waived the

attorney-client privilege regarding communications related to the

21 A-2416-17T3
settlement negotiations because the defendant was "entitled to

explore the existence of such evidence as may enable him to

demonstrate" that the plaintiff did not actually rely on his

representations). Indeed, the fulcrum upon which the validity of

plaintiffs' causes of action pivots is their assertion that

Amerestate entered into the purchase agreement in September 2014,

and proceeded to close title and purchase the property on February

5, 2015, based on its reasonable reliance on the broker defendants'

representations concerning the site's size and the number of as-

of-right units. See, e.g., Blitz, 233 N.J. Super. at 36 (noting

that reasonable reliance on an alleged false representation is an

essential element of a cause of action for legal or equitable

fraud); Kaufman v. i-Stat Corp., 165 N.J. 94, 109 (2000)

(explaining the cause of action for negligent misrepresentation

also requires proof of reasonable reliance).

Moreover, Amerestate represented in the September 2014

purchase agreement that it agreed to purchase the site

in its existing condition AS IS, WHERE IS, AND
WITH ALL FAULTS with respect to all facts,
circumstances, conditions and defects, and,
Seller has no obligation to determine or
correct any such facts, circumstances,
conditions or defects or to compensate
[Amerestate] for same. [Amerestate] is and
will be relying strictly and solely upon such
inspections and examinations and the advice

22 A-2416-17T3
 and counsel of its own consultants, agents,
counsel and officers.

[(emphasis added).]

Thus, Amerestate also placed in issue its reliance on its counsel's

advice concerning the "facts" and "circumstances" regarding the

site, including its size and the number of as-of-right units, by

affirmatively representing in the purchase agreement that it

relied solely upon its counsel and other consultants and agents,

and not on any of the broker defendants' advice, when it agreed

to purchase the property.

Like the plaintiff in Blitz, plaintiffs placed in issue what

they "knew" about the site size and the as-of-right units. 233

N.J. Super. at 37. Under the circumstances presented here,

however, their relevant knowledge and communications with counsel

are not limited to those extant when the purchase agreement was

signed. Plaintiffs' complaint expressly alleges they relied on

the purported misrepresentations when Amerestate executed the

purchase agreement on September 3, 2014, and also when Amerestate

closed title on February 5, 2015. We are therefore convinced

plaintiffs implicitly waived the attorney-client privilege as to

all communications with their counsel prior to the closing of

title pertaining to the site's size, the number of as-of-right

units and plaintiffs' due diligence in investigating and assessing

23 A-2416-17T3
that information. Plaintiffs could not have relied on attorney-

client communications subsequent to the closing of title in making

the decision to purchase the site and, for that reason, plaintiffs

have not placed those communications in issue. See ibid. As the

motion court correctly observed, denying defendants the

opportunity to "probe [the] information" would be to

"fundamentally deprive [defendants] of the ability to defend

[themselves] against these charges properly."

We therefore affirm the court's October 27, 2017 and January

10, 2018 orders but, for the reasons stated, modify the orders to

require disclosure only of the designated attorney-client

communications which occurred prior to the February 5, 2015

closing.

B.

Plaintiffs further argue the court erred by finding they

expressly waived the attorney-client privilege through their

disclosure of otherwise privileged communications. More

particularly, they contend the court erroneously concluded that

plaintiffs expressly waived the privilege based on six separate

emails, four of which were sent by plaintiffs' counsel and two of

which were sent by Salamon.

We first note that our determination the court correctly

concluded plaintiffs implicitly waived the attorney-client

24 A-2416-17T3
privilege renders it unnecessary to address the court's

alternative basis for compelling disclosure of the communications

– plaintiffs' purported explicit waiver of the privilege. That

is, even if the motion court erred in finding plaintiffs explicitly

waived the privilege, plaintiffs' implicit waiver of the privilege

requires disclosure of the communications encompassed by the

court's orders for the time period up to the February 5, 2015

closing of title. For purposes of completeness, however, we

nevertheless address the court's determination that plaintiffs

explicitly waived the attorney-client privilege.

A party expressly waives the attorney-client privilege by

making "disclosure of any part of the privileged matter or

consented to such a disclosure made by anyone." N.J.R.E. 530.

"Generally, once privileged material is disclosed, the privilege

of non-disclosure is waived as to that matter." Hedden, 434 N.J.

Super. at 15. "The waiver of the attorney-client privilege[,]"

however, "rests solely with the client." In re Grand Jury Subpoena

Issued to Galasso, 389 N.J. Super. 281, 298 (App. Div. 2006).

As noted, the motion court found an explicit waiver of the

attorney-client privilege based in part on four emails sent from

plaintiffs' counsel and two emails sent by Salamon. The court

first determined plaintiffs expressly waived the attorney-client

privilege when their counsel handling the purchase transaction

25 A-2416-17T3
sent an August 11, 2014 email to Salamon expressing his concern

about the legal description of the site in the deed. Counsel sent

a copy of the email to Klapper and Berger and, thus, defendants

claim and the court determined Amerestate waived the attorney-

client privilege with respect to all communications between

plaintiffs and their counsel regarding the site size, as-of-right

units, and plaintiffs' exercise of due diligence and reliance on

the broker defendants' alleged misrepresentations.

The email says little more than counsel has a concern

regarding the legal description in the deed and that he would

address the issue when he returned from vacation. The email does

not disclose any privileged communications between Salamon and

Amerestate's transaction counsel concerning the site size, as-of-

right units or plaintiffs' due diligence and therefore does not

constitute a waiver of the attorney-client communications as to

those matters. See In re Grand Jury Subpoena, 389 N.J. Super. at

298 (noting that when attorney-client privileged communications

are disclosed there is a waiver of the privilege with respect to

"information pertaining to the same subject matter"). Moreover,

since only plaintiffs could waive the privilege by disclosing the

communications, and the record is devoid of any evidence plaintiffs

authorized their counsel to waive their privilege, any disclosure

made by their counsel was insufficient to constitute a waiver of

26 A-2416-17T3
the privilege by plaintiffs. See Hedden, 434 N.J. Super. at 15

(finding that only the client can authorize disclosure of

privileged information and therefore waive the attorney-client

privilege). The court erred by finding otherwise.

Similarly, the court erred by finding a November 4, 2014

email from Amerestate's transaction counsel to a title officer,

that sought clarification concerning the existence of easements

on the site, constituted a waiver of the attorney-client privilege.

The email did not constitute an express waiver of the privilege

because it contains no attorney-client communications.

We are also convinced the court erred by finding a February

3, 2015 email from Amerestate's transaction counsel to

Amerestate's representatives describing an attached deed and

detailing suggested corrections supported its determination that

plaintiffs expressly waived the attorney-client privilege

concerning the site's size, the as-of-right units and plaintiffs'

due diligence. Defendants claimed, and the court found, plaintiffs

expressly waived the attorney-client privilege because a copy of

the email was also sent to a third-party title officer. Again,

the email was not sent by plaintiffs and the record is bereft of

any evidence their counsel was authorized to waive the privilege

on their behalf. Thus, there is no basis to conclude counsel's

27 A-2416-17T3
disclosure of his communication with his clients constituted an

explicit waiver of the privilege by plaintiffs.

The record also does not support the court's conclusion a

September 15, 2015 email from plaintiffs' counsel to Salamon and

third-party architects about the necessity of a variance

constituted a waiver of the privilege. There is no evidence

plaintiffs authorized the counsel's disclosure to the third party

and, thus, no basis to conclude the disclosure constituted an

express waiver of the privilege by plaintiffs. See ibid.

The motion court, however, correctly determined that two

emails sent by Salamon constituted an explicit waiver of the

attorney-client privilege. The record shows Salamon was

plaintiffs' authorized representative for purposes of consulting

with their counsel, and therefore his communications with counsel

on plaintiffs' behalf were protected by the attorney-client

privilege. See Hedden, 434 N.J. Super. at 11 (citing Upjohn Co.

v. United States, 449 U.S. 383, 391 (1981)). It therefore follows

that Salamon, acting as plaintiffs' authorized representative,

possessed the capacity to waive the attorney-client privilege on

plaintiffs' behalf. Id. at 17.

In a September 7, 2014 email, Salamon disclosed to a third-

party potential investor attorney-client communications concerning

the number of units at the site and counsel's strategy to increase

28 A-2416-17T3
the unit total. Similarly, in a November 4, 2014 email, Salamon

informed third-parties about counsel's advice concerning the unit

count and square footage of the site plan design. In his emails,

Salamon voluntarily disclosed on plaintiffs' behalf otherwise

privileged attorney-client communications to third parties. We

are therefore satisfied Salamon's emails constituted an explicit

waiver of the privilege by plaintiff that in part further support

the court's disclosure orders.

Affirmed as modified.

29 A-2416-17T3